author: HURLEY, Judge.

text:
    STATE of Florida, Appellant, v. Brenda Ann WILLIAMS, Appellee.
    No. 80-624.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and Peter Birch, Legal Intern, West Palm Beach, for appellee.
   HURLEY, Judge.

This appeal illustrates the interrelationship of two subsections of Rule 3.190, Fla.R. Crim.P. — subsection (c)(4) which allows a motion to dismiss and subsection (d) which authorizes a traverse or demurrer. Since the sworn traverse in the case at bar specifically denied a material fact in the defendant’s motion, the trial court was obligated by the plain meaning of the rule to deny the motion. Its failure to do so requires us to reverse.

Brenda Ann Williams, charged with manslaughter in the death of Otis Nelson, filed a detailed motion to dismiss pursuant to Rule 3.190(c)(4), Fla.R.Crim.P. Ms. Williams admitted stabbing Mr. Nelson, but claimed the action was done in self-defense. She alleged that Nelson had consumed quantities of gin and beer, that he hit her in the head and knocked her to the floor, and that only after Nelson approached her with his arms and hands reaching toward the area of her neck so as to cause her to believe that he was going to choke or strangle her, did she resort to the knife. The State responded to these allegations with a sworn traverse as permitted by Rule 3.190(d), Fla.R.Crim.P. The State denied that “the Defendant picked up and used the knife for her own protection and that her actions were necessary to prevent imminent death or great bodily harm to herself.” The trial court granted defendant’s motion, holding that the undisputed facts “do not constitute the crime charged and/or do affirmatively establish a valid defense.” We respectfully disagree.

Rule 3.190(d), Fla.R.Crim.P., provides in pertinent part:

A motion to dismiss under (c)(4) of this rule shall be denied if the State files a traverse which with specificity denies under oath the material fact or facts alleged in the motion to dismiss. (Emphasis supplied.)

Furthermore, section 2.11(d) of the Florida Standard Jury Instructions in Criminal Cases (2d ed.), provides that:

[A person] is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or to prevent the imminent commission of a forcible felony, or when resisting any attempt to commit any felony upon or in any dwelling house in which he shall be.

See also O’Steen v. State, 92 Fla. 1062, 111 So. 725 (1927); McKnight v. State, 341 So.2d 261 (Fla. 3d DCA), cert. denied, 348 So.2d 953 (Fla.1977); Bates v. State, 325 So.2d 449 (Fla. 1st DCA), cert. denied, 336 So.2d 1180 (Fla.1976); Gil v. State, 266 So.2d 43 (Fla. 3d DCA), cert. denied, 271 So.2d 139 (Fla.1972); but see Schneider, Equal Rights to Trial for Women: Sex Bias in the Law of Self Defense, 15 Harv.C.R.-C.L.L.Rev. 623 (1980).

Applying this long-established principle of law to the case at bar, it is obvious that the facts denied by the state constitute the heart of Ms. Williams’ justification for self-defense. Once placed in dispute, the court had no choice but to allow a jury to resolve thé issue. See State v. Johnson, 398 So.2d 500 (Fla. 3d DCA 1981); Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981); State v. Wright, 386 So.2d 583 (Fla. 4th DCA 1980); State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980); State v. Cook, 354 So.2d 909 (Fla. 2d DCA), cert. dismissed, 359 So.2d 1212 (Fla. 1978); Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 175 (Fla.1977).

Accordingly, the order on appeal is reversed and the cause is remanded for further proceedings consistent with this opinion.

BERANEK and HERSEY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clifford STUART, Appellant, v. Debby STUART, Appellee.
    No. 80-60.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.
    Raymond E. Badini, Miami, for appellant.
    Christopher C. Cloney, Fort Lauderdale, for appellee.
   PER CURIAM.

The husband appeals from an order denying his motion for modification of child support.

The final judgment of dissolution was entered March 23, 1979, at which time the court ordered appellant to pay $100 per week child support. In September, 1979, appellant filed his petition for modification. At the hearing thereon before the trial judge who entered the final judgment of dissolution appellant contended the manner in which his compensation was paid had changed and was somewhat reduced. After hearing the testimony of the parties the trial judge commented:

“I got the distinct impression that the way this fellow operated, that he had more income than he would lead you to believe * * * *
At this point, I just have the impression that his position hasn’t changed that much since the day I made the order.”

It appears to us from the record that there were some conflicts regarding the extent, if any, of the alleged change in circumstances. The petition to modify was heard by the same trial judge who entered the final judgment of dissolution and the record clearly indicates he had some definite impressions about the appellant and his circumstances. Thus, to disturb this order would be a classic case of substituting our judgment for that of the trial judge should we fail to accept his determination of the issue.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.


text:
    William Homer HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 80-116.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Defendant was convicted of burglary and attempted sexual battery. The sole meritorious issue on appeal is whether the burglary conviction must be reversed due to the fact that the defendant obtained consent to enter the victim’s home by telling her that his van had broken down and asking to use her telephone.

Entering a structure with consent is normally a defense to a burglary charge. § 810.02, Fla.Stat. (1979); McEver v. State, 352 So.2d 1213 (Fla. 2d DCA 1977), cert. denied, 364 So.2d 888 (Fla.1978). However, it is clear that entrance gained by trick or fraud will support a conviction for burglary. Pedone v. State, 341 So.2d 532 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 516 (Fla.1978); 13 Am.Jur.2d Burglary § 13. This is because consent to enter obtained in such a manner is actually no consent at all and, therefore, the entrance is unauthorized. State v. Ortiz, 92 N. M. 166, 584 P.2d 1306 (1978).

We hold that the misrepresentations made by the defendant in this case rise to the level of trick or fraud and nullify the consent to enter obtained from his victim. The judgment is therefore

AFFIRMED.

DOWNEY and HERSEY, JJ., concur.


author: PONDER, Justice Ad Hoc.

text:
    STATE of Louisiana v. Angelo PIAZZA, Jr.
    No. 80-K-2420.
    Supreme Court of Louisiana.
    June 22, 1981.
    Michael J. Johnson, Cottonport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Cliffe E. LaBorde, III, Asst. Dist. Atty., for plaintiff-respondent.
   PONDER, Justice Ad Hoc.

Angelo Piazza, Jr., was convicted of aggravated assault and was sentenced to pay a fine of $100.00 or in the alternative to be jailed for thirty days. We granted his application for writs. 396 So.2d 934.

Defendant’s application and brief states the sole issue is that of “freedom and unjustified intrusion.” His arguments seem to be lack of proof and justification.

While the testimony was disputed and confusing, evidently, Cleveland Desselle, the victim, whose son was married to defendant’s daughter, and defendant had had a disagreement. The victim. went to defendant’s house, to straighten out the matter, he said. Defendant and his witnesses testified, often in the vernacular, that the victim intended to beat up the defendant. It is disputed that the victim entered the house or attempted to force his way in; it is undisputed, however, that, after words, defendant armed himself with a shotgun, threatened to shoot the victim if he did not leave, shot into the air, and then aimed the gun at the victim, who left after some delay.

La.R.S. 14:36 defines assault as “... an attempt to commit a battery or the intentional placing of another in reasonable apprehension of receiving a battery.”

Defendant claims that the victim was not scared since he did not leave immediately. The court itself remarked that “... he wasn’t that frightened.” The victim, however, testified otherwise:

“Q. You took off because you were scared?
A. And I come back. Of course so. I come back to the house.”

We hold that whether the objective or subjective test be applied, Desselle was in reasonable apprehension of receiving a battery. We find no deficit in the proof.

La.R.S. 14:19 states:

“The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.”

The evidence that the use of force was necessary to prevent a forcible offense is not convincing; neither is that of the reasonableness of shooting and threatening with a shotgun. We find that the use of force and violence was not justified.

The conviction and sentence are affirmed.

       Judges Lottinger, Edwards and Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


author: DENNIS, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. David L. LEVY.
    No. 60464.
    Supreme Court of Louisiana.
    July 2, 1981.
    Sam J. D’Amico, Baton Rouge, Chairman, Roland J. Achee, Shreveport, Wood Brown, III, New Orleans, Leonard Führer, Alexandria, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, A1 Russell Roberts, Metairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, for plaintiff-applicant.

      Milton P. Masinter and David L. Levy, New Orleans, for defendant-respondent.
   DISCIPLINARY PROCEEDING

DENNIS, Justice.

Respondent attorney, David L. Levy, was convicted by a jury in the United States District Court on five counts of violating and conspiring to violate the Travel Act,18 U.S.C. § 1952, and sentenced to serve concurrently two years on each conviction. Levy was ordered confined to a jail type facility for six months, and placed on probation for the remainder of the sentence. The court later allowed him to complete his six months’, confinement at a halfway house in New Orleans.

In the counts of which Levy was convicted, the indictment charged that: (1) Levy conspired with others to use facilities in interstate commerce to violate the Louisiana commercial bribery law by promising an employee of Petty-Ray Geophysical, Inc. a future interest in another corporation formed by Levy and others in return for the employee’s theft of geological and oil exploration data from his corporate employer; (2) In furtherance of the objects of the conspiracy, Levy on at least five separate dates committed overt acts by instructing a co-conspirator to order gravity maps by long distance interstate telephone call, having a co-conspirator receive the order from interstate shipment, placing a long distance interstate telephone to order gravity maps, and speaking with co-conspirators by long distance telephone calls. . Levy appealed from his convictions to the United States Court of Appeals.

In affirming Levy’s convictions, the United States Court of Appeals summarized the evidence as follows:

“ * * * The proof adduced at trial demonstrated that appellant LaFont approached an employee of the Petty-Ray Geophysical Company, Roger Willis, and proposed that Willis steal from his employer certain seismic exploration charts. In return for the theft, Willis was to receive a percentage of the profits of a corporation specifically organized by appellants Levy and LaFont to exploit the stolen data. Appellant Perrin, a consulting geologist, was to interpret and analyze the data stolen from Petty-Ray.” United States v. Perrin, et al., 580 F.2d 730, 732-733 (1978).

Levy and the other appellants did not challenge the sufficiency of the evidence. 580 F.2d 733. Instead, they contended unsuccessfully that commercial bribery as defined in La.R.S. 14:73 is not “bribery” within the meaning of the Travel Act, that the Louisiana commercial bribery act is unconstitutional, that the interstate nexus supplied by their use of interstate facilities was isolated, minimal, inconsequential and nonessential to the commercial bribery scheme and insufficient to establish jurisdiction under the Travel Act, that jurisdiction under the Travel Act was improperly manufactured by the government, and that the trial judge erred in not granting the appellants’ requested instructions on entrapment. 580 F.2d at 733-738. The convictions of Levy and the other appellants were affirmed, although Judge Rubin dissented on the ground that the unadorned word “bribery” in the Travel Act does not provide authority for the punishment by the federal government of “commercial bribery.” 580 F.2d at 738.

Because of his convictions Levy was disbarred by the United States District Court for the Eastern District of Louisiana on August 15,1980. In the Matter of David L. Levy, U. S. District Court (Eastern District of La.) Misc. No. 411.

Under our disciplinary rules, when an attorney has been convicted of a crime, the Committee on Professional Responsibility obtains a certificate of conviction from the proper court and forwards a copy to this court. The Committee makes a determination whether the crime of which he has been convicted is a serious crime, i. e., a felony or any other crime which reflects upon the attorney’s moral fitness to practice law. If this court concurs in the Committee’s determination that the attorney has been convicted of a serious crime, it may suspend him from the practice of law pending disciplinary proceedings. After an attorney’s conviction has become final, the Committee files a petition in this court seeking disbarment or other disciplinary action. A hearing is held before a commissioner appointed by this court. At the hearing before the Commissioner, the certificate of conviction is conclusive evidence of the attorney’s guilt of the crime of which he has been convicted, and the sole issue is whether the crime warrants discipline, and if so, the extent thereof. But the attorney may offer evidence of mitigating circumstances not inconsistent with the essential elements of the crime. Rules of the Supreme Court of Louisiana, Rule 19 (1973); Articles of Incorporation, Louisiana State Bar Ass’n., art. 15, § 8(1)-(8). Louisiana State Bar Ass’n v. Levy, 389 So.2d 51 (La.1980); Louisiana State Bar Ass’n v. Quaid, 368 So.2d 1043 (La.1979); Louisiana State Bar Ass’n v. Hennigan, 340 So.2d 264 (La.1976); Louisiana State Bar Ass’n v. Loridans, 338 So.2d 1338 (La.1976).

After a hearing the Commissioner recommended that Levy be suspended from the practice of law for three months. The Commissioner’s Report concludes that the attorney was convicted of a serious crime, a felony, which reflects on his moral fitness to practice law. The Commissioner found that there were mitigating circumstances but he did not designate or discuss them. Levy concurs in the Commissioner’s recommendations. The Committee on Professional Responsibility brought this disciplinary proceeding alleging that Levy’s convictions indicate that he lacks the moral fitness to practice law and praying that this court order disbarment, suspension, or lesser disciplinary action. In written and oral argument, the Committee argues that disbarment would not be inappropriate but that Levy should at least be suspended for a “significantly determinate period.”

The evidence introduced at Levy’s criminal trial has not been made available to us. The parties are content to submit the case upon the certificate of conviction and the limited evidence introduced before the Commissioner. Since their decisions indicate the best judgment of each that the record before us fairly presents the aggravating and mitigating circumstances of Levy’s offenses, we will not burden the parties by requiring that they produce the voluminous federal trial court record.

The offense in question, a felony involving bribery of a corporate employee with the intent to induce him to steal valuable seismic exploration charts from his employer, trenches upon at least two basic precepts of the Code of Professional Responsibility:

Disciplinary Rule 1 — 102 provides in part:
(A) A lawyer shall not:
* * * # * *
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Levy offered evidence of mitigating circumstances. He introduced excerpts of the transcript of testimony from his trial in the United States District Court for the purpose of showing that his guilt was not as great as that which must be inferred from the face of the judgment of convictions. This evidence is not convincing, however, because it consists of several isolated passages which, taken as a whole or individually, do not prove any facts conclusively or indicate with probability that Levy’s guilt was minimal. Also in mitigation, he offered testimony and letters by attorneys and laymen in his community indicating that despite his convictions he continues to enjoy a good reputation. Levy testified that, although he has continued to practice law and has maintained his professional telephone listing, he removed his name from his office door, informed his clients of the charges against him, offered to withdraw from representing any client who desired to employ other counsel, and refused to accept employment involving protracted litigation. He further testified that his convictions were not well known by his fellow attorneys and citizens. Although he contends that he has suffered financially because of his criminal activity, he failed to produce any specific testimony or other evidence demonstrating monetary loss.

The purpose of lawyer discipline proceedings is to maintain appropriate standards of professional conduct in order to protect the public and the administration of justice from lawyers who have demonstrated in their conduct that they are unable or likely to be unable to discharge their professional duties. Louisiana State Bar Ass’n v. Quaid, supra; Louisiana State Bar Ass’n v. McSween, 347 So.2d 1118 (La.1977); Louisiana State Bar Ass’n v. Ponder, 340 So.2d 134 (La.1976), appeal dismissed 431 U.S. 934, 97 S.Ct. 2643, 53 L.Ed.2d 251; ABA Joint Committee on Professional Discipline, Standards for Lawyer Discipline and Disability Proceedings, § 1.1, p. 1 (Approved Draft February, 1979). The discipline to be imposed in a particular case will depend upon the seriousness and circumstances of the offense, fashioned in light of the purpose of lawyer discipline, taking into account aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Bensabat, 378 So.2d 380 (La.1979); see ABA Joint Committee on Professional Discipline, Standards for Lawyer Discipline and Disability Proceedings, § 7.1 p. 44 (Approved Draft February, 1979).

Applying these precepts, we conclude that disciplinary action suspending respondent from the practice of law for eighteen months is warranted. His bribery of a corporate official in an attempt to steal valuable data amounted to dishonesty, deceit and lack of respect for another’s fiduciary obligation, betraying a lack of fidelity to his own professional duty to uphold and respect the laws. It was a serious crime and a serious breach of professional conduct, justifying a substantial punishment to avoid deprecation of the offense and to provide a meaningful deterrent to other potential offenders. Absent extenuating circumstances, a more serious punishment would be called for.

In mitigation, we have considered several circumstances. Commercial bribery, a misdemeanor under state law, is a less serious offense than other unlawful activity which may form the basis of a violation of the Travel Act. Levy’s violations of the Travel Act and the state commercial bribery statute were not directly related to his practice of law. Apparently, neither society nor any individual was harmed seriously by Levy’s transgressions. His character and propensities on this record appear susceptible to reform and correction with appropriate discipline. On the other hand, Levy is not entitled to mitigation because of the alleged painful extrajudicial consequences of his crimes. If an attorney’s suffering due to his crimes ever justifies alleviation of professional discipline, it does not in respondent’s case. The evidence of his embarrassment and financial loss is too slight; the self imposed strictures on his practice of law were too mild.

Accordingly, it is ordered that David L. Levy be suspended from the practice of law for a period of eighteen months. Since this court within its discretion refused to suspend him from the practice of law during disciplinary proceedings, his suspension shall commence upon the effective date of the finality of this decision. All costs are charged to respondent.

SUSPENSION ORDERED.

      . 18 U.S.C. § 1952 provides:
      (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
      (1) distribute the proceeds of any unlawful activity; or
      (2) commit any crime of violence to further any unlawful activity; or
      (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
      and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,-000 or imprisoned for not more than five years, or both.
      (b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.
      (c) Investigations of violations under this section involving liquor shall be conducted under the supervision of the Secretary of the Treasury.

      . La.R.S. 14:73 provides:
      Commercial bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any private agent, employee, or fiduciary, without the knowledge and consent of the principal or employer, with the intent to influence such agent’s, employee’s, or fiduciary’s action in relation to the principal’s or employer’s affairs.
      The agent’s, employee’s or fiduciary’s acceptance of or offer to accept, directly or indirectly, anything of apparent present or prospective value under such circumstances shall also constitute commercial bribery.
      The offender under this article who states the facts, under oath, to the district attorney charged with prosecution of the offense, and who gives evidence tending to convict any other offender under this article, may, in the discretion of the district attorney, be granted full immunity from prosecution for commercial bribery, in respect to the particular offense reported.
      Whoever commits the crime of commercial bribery shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.

      . Levy’s conviction occurred July 30, 1976. On August 15, 1977, the Committee filed a report in this court finding that Levy had been convicted of a serious crime and recommending that he be suspended from the practice of law pending the finality of his conviction. On November 15, 1977, we ordered disciplinary proceedings against Levy stayed pending his appeal, refraining at that time to order his suspension from the practice of law.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Douglas MORAN.
    No. 80-K-1884.
    Supreme Court of Louisiana.
    July 2, 1981.

      Michael W. Shannon, Alexandria, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., J. Edward Hines, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   LEMMON, Justice.

We granted defendant’s application for certiorari to review his conviction of criminal neglect of family in violation of R.S. 14:74. Defendant’s primary contention, insufficiency of evidence to support the conviction, is based on the assertion that the trial judge imputed support payments, made during February through May, 1980, to defendant’s debt for support payments due in 1979 under a judgment in a civil suit (see C.C. art. 2166) and found as a matter of law that defendant had not made any support payments in 1980.

I.

Defendant and his wife were married on July 3, 1970. One son was born of the marriage. The parties subsequently separated, and the judgment of separation, rendered on August 30, 1979, ordered defendant to pay $200 per month for the support of his minor son.

At the trial of the charge now under consideration defendant testified that he was unable to pay support until December, 1979 because he was out of work, first because of a strike and then because of an injury. He further testified that he divided with his wife $600 in disability benefits received in December, 1979; that he sold the family home in January, 1980 and divided with his wife the sum of $14,000, which remained from the net proceeds of the sale after payment of bills amounting to $6,000; and that he used his half of the net proceeds to pay other community debts.

Defendant began making child support payments in February 1980. He paid $100 on February 2, $50 on February 29, $150 on March 21, $150 on April 11, and $100 on May 23, 1980. During that period of time he was earning net monthly wages of about $900.

On May 21, 1980 defendant’s wife lodged a complaint with the district attorney, asserting that no support payments had been made since April 11 and that her former husband had stated he would not make any payments during the summer months. On June 16, 1980 the district attorney filed a bill of information charging that between April 11, 1980 and May 21, 1980 defendant violated R.S. 14:74 in that he intentionally failed to provide support for his minor son, who was then in necessitous circumstances.

The case was tried on July 30,1980. Following the close of evidence and arguments by counsel, the trial judge conscientiously reviewed all of the evidence presented. Noting that defendant was in arrears on his civil support judgment, the trial judge imputed the 1980 support payments to the debt due beginning in September, 1979 and accordingly concluded that no payments were made during 1980. In rendering and explaining his verdict of guilty, the trial court stated:

“BY THE COURT: All right. I will start back with the date that the prosecution and defense have been using and, that is, a civil judgment rendered in civil court ordering this defendant to pay $200.00 a month alimony for the minor child. The first payment to be due on February [sic] 1st, 1979.
“No payments were made on the judgment through February the 1st, 1980, at which time he was $1,200.00 in arrearage on the civil judgment. On February the 2nd, he paid $100.00 on that civil judgment, which would have been one-half of the payment due on September 1st of 1979. This, in spite of the fact that he cleared $7,000.00 in January of 1980 from the sale of a house, but he said he paid other bills other than the bill for his child. The bill for the child should have come first.
“Another payment accrued on March the 1st which made him have an arrearage of $1,300.00. On March the 1st, he paid $50.00. He said it was February the 29th. She said it was March the 1st. I presume that was the date that she got it, March the 1st was, of $50.00, which would have been one-fourth of the payment due in September of 1979. Leaving an ar-rearage of $1,250.00. On March the 21st, he paid $150.00. Fifty dollars of which was the final payment on the September ’79 obligation of $100.00 on the October 1st obligation.
“On April the 1st, another $200.00 payment became due leaving him an arrear-age of $1,300.00. On April the 11th, he paid $150.00, which meant the other half owed for October ’79 and $50.00 due on the November the 1st payment.
On May the 1st, another $200.00 payment accrued making an arrearage of $1,350.00. On May the 23rd he paid $100.00, which would have been a part of the obligation due on November the 1st, 1980, leaving an arrearage of $1,250.00. “So, under the law, the payments that he made, of course, were payments for the obligations first due, which means that, legally, he hasn’t paid anything under that Judgment for part of November and nothing of child support from December through May of 1980. I am not going beyond May the 23rd, 1980, with this calculation, although, since that time he has paid $200.00 which, of course would have cleared him up for the remainder of November and a part of the December payment.
“So, actually, for 1980, he has paid no child support whatever. And these payments were in payment of the civil obligation.
“There were no payments made during the period of time alleged in the petition. Also, during that period of time, the mother of the child filed this present complaint after he informed her that he was not going to' pay anything during the summer vacation months. He took the witness stand and did not deny making this statement so apparently he made it, which, of course, should have alarmed her, and that expression by him certainly supplies the intent that he does not intend to support this child.
“He is still not paying under his civil obligation, of course, I am not here to enforce the civil obligation. It is to determine whether or not he is guilty of non-support.
“And this Court is of the opinion that under the facts he is guilty of nonsupport.
“BY (DEFENSE COUNSEL): Your Honor, may I say something?
“BY THE COURT: What?
“BY (DEFENSE COUNSEL): We all know that you are not here to enforce the civil obligation. And by finding that each payment made is retroactive to the first payment due and what not is exactly what you are doing, that payments were in fact made between April 11th and May 21st. Now, if ... in a civil suit, I think we can look at it that way but we are dealing now in criminal court and the fact whether he has supported the child during those periods in question, and he did make the payments at those times. “BY THE COURT: But he stated that he was paying on this civil obligation. Under the law, the payment in goes back to the oldest indebtedness so, as I stated in the record, the payments made on April 11th and on May the 23rd revert back to payments way last year ...
“BY (DEFENSE COUNSEL): But the payments were made ...
“BY THE COURT: That’s what they were for, to retire that indebtedness, and he paid nothing in May.
“I find the accused guilty of the charge.”

We granted certiorari to review this ruling. 392 So.2d 1055 (La. 1980).

II.

In order to convict a parent under R.S. 14:74 A(3), the state must prove that a parent intentionally failed to support his child, that the parent had financial means or ability to provide support, and that the child was in destitute or necessitous circumstances. Defendant contends that the state had to prove all of these essential elements and failed to prove any.

Under the statute which prohibits desertion or nonsupport of minor children an intentional failure to perform constitutes the crime. R.S. 14:8 (1). The purpose of the statute is to compel performance when the accused is capable but unwilling to perform and not merely to punish for nonperformance.

The usual defense to a charge under the statute is that the parent is willing but unable to perform (or that the child is not in necessitous circumstances). In the present case, however, the parent did perform his support obligation to some extent, and the question is whether that performance, in the light of the record proof of the parent’s means and ability and the child’s necessitous circumstances, is sufficient to escape criminal culpability.

The trial judge in this case erred in imputing defendant’s February through May contributions to his child’s support to his antecedent debt under a civil judgment. We could set aside the conviction based on trial error and remand for a new trial, at which the same evidence and additional evidence can be introduced. However, the record is complete, and the facts are not in dispute. Since defendant’s assignment of error is sufficiency of evidence, which is an issue of law, the issue can be decided by this court just as well as by the trial court, without the necessity of a remand.

We note first that the amount of support required by R.S. 14:74 is not necessarily coextensive with the amount of support which may be (or may have been) fixed under different standards applicable to the determination of a civil obligation for child support. Thus, while evidence of a parent’s partial or total failure to discharge his civil obligation is admissible, that evidence is not alone determinative of his guilt of criminal neglect of family. See State v. Guillot, 389 So.2d 68 (La. 1980). But whatever defendant’s civil obligation is in this case under C.C. art. 227 or under the civil judgment ordering payment of $200 per month, the determination of defendant’s criminal liability depends upon proof of the elements of the crime listed in the criminal statutes.

Under the facts established in this record (with the payments viewed as made on the actual dates of payment), we hold that the state has failed to establish intentional nonsupport. Defendant provided his wife with half of his disability benefits and half of the net proceeds of the sale of the family home. When he returned to work, he provided approximately $150 per month, (Ve of his net monthly wages) for the support of one child, in addition to paying $50 per month for the support of an illegitimate child. We simply cannot conclude that this evidence proves criminal nonsupport beyond a reasonable doubt, particularly since the mother also earned approximately $420 net per month and the record contained virtually no proof of the child’s necessitous circumstances.

The judgment is reversed, and the matter is remanded with instructions to grant a judgment of acquittal.

       Judges Frederick S. Ellis, Luther F. Cole and J. Louis Watkins of the First Circuit Court of Appeal participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson and Lemmon.

      . Even if the civil law were applicable, the imputation is arguably incorrect. C.C. art. 2166 requires imputation of the debt which the debtor at the time of payment had most interest in discharging. Since a parent is subject to criminal sanctions for current failure to support his child, it must be presumed that defendant had most interest in discharging his current support obligation in order to avoid criminal penalties.

      . R.S. 14:74 A(3) provides:
      “A. Criminal neglect of family is the desertion or intentional nonsupport:
      * * * * * *
      “(3) by either parent of his minor child who is in destitute or necessitous circumstances when such parent has the financial means or ability to provide support, there being a duty established by this Section for either parent to support his child.”

      .Indeed, the penalty portion of the statute accords the trial judge the additional authority to order future periodic payments in lieu of, or in addition to, fine or imprisonment. One purpose of this additional authority is to enable a spouse or a child (through the proper representative) to obtain support when no suit for divorce or separation has been filed.

      . Prior to the decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) sufficiency of evidence was frequently considered to be an issue of fact and therefore not reviewable by this court in a criminal case. See, for example, State v. Austin, 374 So.2d 1252 (La. 1979). However, sufficiency of evidence is now recognized as an issue of law and subject to review in a criminal case under the Jackson standard. See, for example, State v. Byrd, 385 So.2d 248 (La. 1980).

      . Evidence introduced by either side need not be limited to the period stated in the bill of information. Either side may present evidence relating to dates before or after the dates stated in the bill, in order to show patterns of contribution or needs, and the bounds of relevancy are to be determined by the trial judge.

      . In State v. Galjour, 41 So.2d 215 (La. 1949) and State v. Austin, above, this court recognized the distinction between the obligation imposed by the Civil Code and the affirmative duty imposed by the criminal statutes.

      . A parent’s duty under the criminal law to support his child involves more than salvation from destitution. Proper considerations are requirements for food, shelter, clothing, health, education and comfort, determined in the light of the circumstances of all persons involved.


author:
CALOGERO, Justice.
     MARVIN, Justice Ad Hoc,

text:
    STATE of Louisiana v. Roy TILLEY.
    No. 80-KA-2351.
    Supreme Court of Louisiana.
    July 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., Byards Edwards, Jr., Abbott Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Timothy Higgins, Hammond, for defendant-appellant.
   CALOGERO, Justice.

Defendant Roy Tilley was charged by bill of information with distribution of cocaine, a controlled dangerous substance, in violation of R.S. 40:967(A). Following trial, the twelve member jury returned a unanimous verdict of guilty as charged. The trial judge sentenced defendant to serve twenty-one years at hard labor and to pay a fine of $10,000.00. On appeal to this Court, defendant argues only that the sentence is excessive.

The prison sentence for distribution of cocaine is from a minimum of five years at hard labor to a maximum of thirty years; additionally a defendant may be sentenced to pay a fine of not more than fifteen thousand dollars. R.S. 40:967(B). Defendant therefore received a sentence which is approximately two-thirds that maximum allowed under the statute. The statute does not prohibit the trial judge from suspending the sentence and placing the defendant on probation.

Defendant’s arrest on May 29,1979, at his trailer home in Springfield, Louisiana, was the result of an investigation by the Louisiana State Police Narcotics Division. Pursuant to a tip from a confidential informant, Agent Thomas Fischer went to defendant’s home on February 9, 1979, with the confidential informant and asked defendant if he had narcotics for sale. Defendant stated that he had none, but suggested that drugs could be purchased from a neighbor.

On February 23, 1979, Agent Fischer returned to defendant’s home. Defendant asked Fischer if he had come to purchase narcotics. Fischer replied that he had and inquired whether defendant had any cocaine. Defendant answered in the affirmative and produced a small bottle containing approximately 30 foil packets. Inside the foil packets was a white powder. Fischer selected six packets and paid defendant $60.00 or $10.00 per packet. Fischer left the trailer after purchasing the six packets. Fischer later obtained an arrest warrant for defendant and a search warrant for the trailer.

After the trial, the judge ordered a pre-sentence investigation. At the sentencing hearing, neither the state nor the defendant introduced any evidence. Referring to the presentence investigation report, the trial judge imposed the sentence of 21 years imprisonment and a fine of $10,000.00.

Defendant concedes that the judge complied with C.Cr.P. art. 894.1 which sets forth guidelines for consideration in imposing sentence and mandates that the trial judge state for the record the considerations taken into account and the factual basis for these considerations in imposing sentence. Defendant argues instead that the trial judge failed to give sufficient weight to defendant’s youthful age (18 years old) and the fact that he was a first offender; that is, he had never before been convicted of a felony.

In imposing defendant’s sentence, the trial judge cited the reasons listed in C.Cr.P. art. 894.1(A) as those for the sentence he was imposing:

“(1) There is an undue risk that during the period of a suspended sentence or probation that the defendant will commit another crime.
“(2) The defendant is in need of correctional treatment or custodial environment that can be provided most efficiently by his commitment to an institution.
“(3) A lesser sentence will deprecate the seriousness of the offense.”

In compliance with article 894.1(C), the judge stated that defendant sold not one, but six, packages of cocaine from the approximately thirty he had for sale. The judge noted that defendant had told Agent Fischer that he was out of another narcotic, Dilaudid, at the time of the cocaine sale. The judge stressed that the Legislature had determined that cocaine was a particularly harmful drug with a high potential for abuse and had set appropriately high penalties for its sale. Finally, the judge stated that it was his opinion that defendant was in the “main stream of the flow of narcotic traffic”' and that there was no reason to believe that defendant would not remain in the narcotics business if set free.

The judge then turned to the presentence investigation report which showed among other things that defendant had two DWI convictions and a third charge outstanding. Observing that the first conviction was without counsel, the judge said that he doubted that the third offense DWI would stand. The judge also noted that the defendant had been convicted of driving under suspension and contributing to the delinquency of a juvenile. Only the first of any of these offenses had been committed before the distribution of cocaine for which defendant was being sentenced. The judge commented that defendant had received a break by being placed on active probation previously. The judge then opined that defendant’s past conduct gave him every reason to believe that defendant could not control his own life.

Louisiana Constitution, Art. I, § 20 prohibits the imposition of excessive punishment. Accordingly, in State v. Sepulvado, 367 So.2d 762 (La.1979), this Court held that a sentence, although within the statutory limit, might violate a defendant’s constitutional right against excessive punishment. While a trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed will not be set aside as excessive in the absence of an abuse of that discretion, the trial court does not have unbridled discretion in imposing sentence. State v. Sepulvado, supra.

The purpose of C.Cr.P. art. 894.1 is to provide the trial judge with guidelines so that he may individualize the sentence to fit the particular defendant, considering his background and the offense he committed. In this regard we are disturbed by the comment of the trial judge that:

“Mr. Tilley, this Court has in its short history been lenient to young people; however, it has been totally disappointed, and it has learned that age cannot be a factor in the determination of such a serious offense, especially when a pattern of life has been struck, as has yours.”

To us, this comment indicates that the judge allowed his experience with others to cloud his judgment concerning this defendant, something which article 894.1 is designed to prevent.

Our review of the presentence investigation report reveals that defendant, following the second DWI conviction, was referred to the Baton Rouge Substance Abuse Clinic. A report from the clinic verifies that defendant did indeed report for treatment. This compliance indicates a possible willingness on the part of defendant to alter his present life-style, which includes drug use beginning at age seventeen.

At the time of the sale of the cocaine, defendant was eighteen years old. He was nineteen when sentence was imposed. The presentence investigation report convinces us that defendant was engaged in a very small-time operation even though it did continue for a period of time.

Approximately a month after the sale of cocaine to Agent Fischer but prior to his arrest on the instant charge, defendant sold eight Doriden pills to the same policeman. This sale formed the basis for another charge against defendant. Following his conviction for the sale of cocaine, defendant entered a guilty plea to the reduced charge of conspiracy to distribute Doriden. For that conviction defendant received a prison sentence of five years to run concurrently with the sentence imposed for the sale of cocaine. Still unresolved is a marijuana possession charge growing out of the execution of the search warrant at which time this substance was found in the trailer occupied by defendant.

According to the presentence investigation report, based upon defendant’s past driving and other offenses, the District Attorney’s and Livingston Sheriff’s Offices recommended against a suspended sentence with probation. While defendant, as a first offender, would be eligible for probation, we are not prepared to say that it was error to impose a prison sentence and not suspend it and place defendant on supervised probation. However, the fact that he did register and continued to attend the drug abuse clinic indicates that defendant is amenable to the idea, at least, of treatment and rehabilitation.

A review of some recent drug cases, the sentences imposed and the outcome of the appeals in this Court is helpful to our consideration of the appeal before us in the instant case. In State v. Forshee, 395 So.2d 742 (La.1981), we vacated as excessive a sentence imposing three years at hard labor and a fine of $7,500.00. That defendant had been found in possession of nineteen preludin pills and charged with possession of the drug with intent to distribute. For-shee was twenty-two at the time of his offense and had been working during the periods he was not attending school.

Conversely, we upheld a twenty-year sentence for distribution of cocaine in State v. Cain, 382 So.2d 936 (La.1980), where the quantity of cocaine was many times that sold by the defendant before us now. Furthermore, Cain was already on parole for a prior conviction for possession of cocaine with intent to distribute.

We also upheld a twenty-one year sentence in State v. Bonanno, 384 So.2d 355 (La.1980). In Bonanno, the cocaine sold had a wholesale value of $22,000.00 and was intended to open a large new cocaine market in the Shreveport area. Bonanno had told the undercover agent that he delivered cocaine to a variety of cities throughout the United States and that he could supply cocaine on a regular basis. Bonanno had found the person necessary to invest the money and had purchased the cocaine for resale. Bonnano was truly a large scale operator and we had no qualms with the sentence he received.

Turning our attention to the defendant before the bar, we notice substantial differences between his situation and those of Bonanno and Cain. As previously noted, defendant sold a very small quantity of cocaine. Whatever might be said about the trial judge’s conclusion that defendant is in the “main stream” of drug traffic, defendant is no more than a small fish. We find that defendant’s work record is steady. Defendant is a high school drop out, having finished the tenth grade. Nevertheless, defendant has basically had regular employment of the type such an individual could expect. At the time of his arrest, defendant was working as a forklift operator. During the time he was free on bond, pending trial, and again while awaiting sentencing, defendant secured employment. One of the goals defendant established at the drug abuse clinic was to qualify for a G.E.D. to compensate for not having completed high school.

Although defendant is not married and therefore does not have a family to support in the traditional sense, defendant does live with a physically disabled mother.

For such a young person, eighteen at the time of the drug sale and nineteen at sentencing, even the statutory minimum of five years at hard labor unsuspended may be harsh. Certainly a sentence of twenty-one years and a fine of $10,000.00 is excessive. The Model Penal Code, Proposed Official Draft, § 6.05 suggests that a young adult offender (between the ages of sixteen and twenty-two) convicted of a felony be sentenced to a “special term of imprisonment without a minimum and with a maximum of four years, regardless of the degree of the felony involved” if the trial court determines that a prison sentence is indeed required. Our legislature has set forth a maximum sentence of thirty years with the additional possibility of a fine up to $15,-000.00 for this crime. While there is no special provision for the sentencing of young offenders, the legislature has set forth in article 894.1 guidelines to be considered by the trial judge in determining the sentence to impose. The mitigating circumstances, although not controlling, may not be disregarded by the trial judge. When a small-time end man receives the same sentence as a large scale drug wholesaler, the sentences are not individualized to fit the particular defendant and the offense.

For the foregoing reasons a sentence of twenty-one years and a fine of $10,000.00 for an eighteen year old first offender as this one, even considering that he might have been on the bottom end of selling cocaine and/or other drugs in small quantities, is excessive. In our view, the range of constitutionally permissive sentences in cases of this sort would be from the statutory minimum to as much as ten years.

Decree

For the foregoing reasons, defendant’s sentence is vacated and the case remanded to the trial court for resentencing in accordance with the views expressed herein.

SENTENCE VACATED, REMANDED TO THE TRIAL COURT FOR RESEN-TENCING.

LEMMON, J., dissents and will assign reasons.

BLANCHE, J., dissents and would not disturb the sentence imposed by the trial judge.

MARVIN, J. Ad Hoc, dissented for reasons assigned.

MARVIN, Justice Ad Hoc,

dissenting.

In the sentencing process, if the trial court says too little, this court vacates the sentence and directs the trial court to follow the guidelines of C.Cr.P. 894.1. Here the same result is reached, not because the trial court said too little, but because the trial court said too much.

While I must accept this court’s declaration of its authority to determine whether a sentence is excessive, I have difficulty believing that either the electorate or the delegates to the constitutional convention intended such a result by the language of Art. 1, § 20, La.Constn.:

“No law shall subject any person to . . . excessive .. . punishment. * * *” Emphasis supplied.

I would rather believe that this language means that the electorate was authorizing the judiciary to strike down laws in which the legislature imposed a sentence which was highly disproportionate and constitutionally out of reasonable connexity to the severity of the crime, e. g., “whoever commits the crime of burglary shall be sentenced to imprisonment at hard labor for not less than 30 years and not more than 50 years without probation, parole or suspension of sentence.”

Moreover, under our legal system, with all of its imperfections, the people have seen fit either to determine for themselves by constitutional declaration, or to empower their legislators to determine, what punishment shall be imposed for particularly described criminal conduct. The judiciary and the executive have certain correlative powers of review, pardon, and commutation, but the legislative crime and punishment power exclusively belongs to the people or their legislators.

I am also satisfied that the Legislature has acted within its power in generally categorizing adult and juvenile offenses and that it is not constitutionally impermissible to subject a person over the age of 17 years to the adult process. As the majority states, the Legislature has not made age a specific guideline in C.Cr.P. 894.1, although a trial judge may consider age or other unstated factors in determining the sentence to be imposed in the individual case. The penalty range, legislatively fixed, is “. . . not less than five years nor more than thirty years ...” LRS 40:967(B)(1).

The defendant, and apparently the majority, concede that the trial court followed the statutory guidelines in imposing a sentence of 21 years, but the majority is disturbed by the trial judge’s express consideration and discounting of this defendant’s age as reflected in the statement by the trial judge to the effect that “my experience in being lenient with young offenders such as you, has been totally disappointing, and I have learned by this experience that age cannot be a controlling factor in the determination of sentence for such a serious offense, particularly when a pattern of life has been struck as yours has.” The trial judge additionally commented:

“(1) There is an undue risk that during the period of a suspended sentence ■ or probation that the defendant will commit another crime.
“(2) The defendant is in need of correctional treatment or custodial environment that can be provided most efficiently by his commitment to an institution.
“(3) A lesser sentence will deprecate the seriousness of the offense.”

The trial court additionally observed that it was his opinion that defendant was in the “main stream of the flow of narcotic traffic” and that there was no reason to believe that defendant would not remain in the narcotics business if set free.

The circumstances of this defendant support all of these conclusions of the trial judge. The offense is made “serious” by the legislative graduation of controlled dangerous substances. Defendant indicated that he was temporarily out of other drugs in which he dealt. After defendant’s arrest, defendant sold other drugs to the same undercover policeman and had a quantity of marijuana in his trailer. After defendant’s arrest for cocaine distribution, defendant was convicted of DWI, driving while under suspension, and contributing to the delinquency of a juvenile. These are factors which certainly may be considered by the sentencing judge even though they are not included among the statutory guidelines. These circumstances strongly support the trial judge’s conclusion that he had every reason to believe that defendant could not control his own life, that defendant had struck a pattern, that there was an undue risk defendant would commit another crime, and that defendant is in need of custodial environment. The circumstances also support specifically the trial judge’s observation that defendant was in the “main stream of the flow of narcotic traffic” and show defendant’s disregard of the law.

I am satisfied that a so-called small-time narcotics operator who engages in the business for a long period of time (as the majority says) is “within the mainstream of narcotics traffic” as the trial court says. A “small fish” in the main stream preys on smaller, and, as he grows, on increasingly bigger fish.

Sentences, verdicts, money awards, and other results in our legal system vary with the peculiar facts of the individual case and with the vagaries of the human and individual trier of fact. Seven, or any number of, judges may each impose a different sentence under the circumstances of this case, all of which could be within the range of discretion afforded by law and which could be upheld as not abusive of that discretion. Our state’s legal system provides for such varying results from parish to parish, from judge to judge, from individual to individual, because this “justice” is purposely designed to be rendered in the trial courts and not uniformly by one body statewide.

When a trial court has stated and supported the factual basis for which it has given its consideration of the statutory guidelines and for other legitimate and proper considerations in imposing a sentence within the range fixed by the legislature, this court should not find that sentence excessive under the constitution.

Additionally, I observe that the trial court considered the 21-year sentence in imposing a concurrent 5-year sentence on the defendant for the crime of conspiracy to distribute Doriden. If the 21-year sentence is vacated with directions to limit a resen-tence to no more than 10 years, as the majority states, the 5-year sentence should likewise be vacated to allow the trial court to reconsider the total sentences for this defendant.

I find no abuse of the trial court’s sentencing discretion because it is shown that the trial court followed the statutory guidelines, to the extent of individually considering this defendant’s age in the light of all other circumstances, even if age is a mandatory guideline.

I respectfully dissent.

       Judges, Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones of the Court of Appeal, Second Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr., and Harry T. Lemmon.

      . Cocaine is an alkaloid derived from the leaves of the coca plant. Although generally considered as a narcotic, cocaine is actually a central nervous system stimulant similar to the amphetamines. [Distribution of amphetamines carries no minimum sentence, but does have maximum sentence of ten years plus a possible fine of up to $15,000.00.] In small doses, cocaine produces a pleasurable state of well-being and relief from fatigue. While cocaine is habit forming and may be physically addictive in some individuals, these characteristics are not of the same degree as found in the opiates such as heroin or morphine.

      . The full text of article 894.1 states:
      “A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      “B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      “C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

      . Defendant’s only adult offenses prior to his arrest on the instant charge were two speeding tickets and a first offense DWI. Defendant has no juvenile record.

      . Dilaudid is a morphine derivative used in the treatment of moderate to severe pain.

      . Doriden is an hypnotic prescribed for the short term treatment of insomnia. Chemically, Doriden is composed of glutethimide which is a Schedule III drug. Distribution or possession of these drugs carries substantially lower penalties than those for distribution or possession of Schedule II narcotics.

      . We base our determination of quantity on the relative prices paid in the two cases. Agent Fischer paid $60.00 for the cocaine he purchased from this defendant. Cain sold cocaine for a total price of $4,600.00. Agent Fischer testified that defendant had approximately thirty packets for sale, making a total amount of $300.00.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Terry EDWARDS.
    No. 80-KA-2624.
    Supreme Court of Louisiana.
    July 2, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Leon Cannizzaro, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Donald Foret, Metairie, for defendant-appellant.
   CALOGERO, Justice.

Defendant Terry Edwards and one William McNabb were charged by bill of information with theft of $248,192.00 from a Purolator Security, Inc., armored truck in violation of R.S. 14:67. Represented by the same retained counsel, defendants were tried together and convicted. The trial court sentenced each defendant to seven years imprisonment at hard labor. On appeal to this Court defendant Edwards argues six assignments of error for the reversal of his conviction.

Evidence adduced at trial revealed that, using the name William A. Evans, defendant McNabb obtained employment with Pu-rolator Security, Inc. Consistent with company policy, McNabb was fingerprinted, given a polygraph examination and assigned to begin work as a guard riding in the rear of an armored truck. McNabb served as a guard in a truck driven by a co-employee, one Norman Fouret. As a guard, McNabb received the money picked up by the driver and recorded the serial numbers of the deposits onto a manifest. He also handed the driver items being delivered to the respective Purolator customers. On July 26, 1979, just before 5 p. m., Mr. Fouret was making a pick-up from Harry’s Ace Hardware, in a small shopping center on General Meyer Ave. in Algiers.

An off duty police officer was having coffee in a small restaurant in the same shopping area and observed, on the parking lot, a large, white recreational vehicle with an orange stripe pull alongside the Purolator truck. Officer Burnham related that the vehicle had New York license plates and that the word “Attala” was printed on the side of the vehicle. Burnham saw someone take a large white bag from the armored truck, throw the bag into the recreational vehicle and then enter the recreational vehicle on the passenger side. The vehicle drove away.

Mr. Fouret, the Purolator truck driver, returned to his vehicle with the pick-up from Harry’s Ace Hardware and continued on his route. At his next stop he called for the guard to hand him a bag and received no reply. Fouret got out of the truck, went to the rear, opened the doors and discovered that the guard was not inside. Fouret reported the guard’s absence to his supervisor and then checked to determine whether anything was missing from the truck. All the money with the exception of two bags of change was found to be missing.

The day after the crime, the defendant, Terry Edwards, brought a white Ford recreational vehicle with an orange stripe to an automobile auction in Gulfport, Mississippi, and registered it for sale. The word “Attala” had been covered with paint but was still somewhat visible beneath the paint. Officer Burnham later identified this vehicle as the one he had seen involved in the General Meyer Ave. incident. At the time the police discovered the vehicle, it had a Louisiana license plate, but a New York brake tag and registration certificate on the windshield, as well as a Louisiana brake tag.

The evidence against McNabb was strong. Fouret, driver of the Purolator truck which was the subject of the theft, identified him as the man who served as the guard on that truck. Additionally, McNabb’s fingerprints matched those taken off the job applicant who gave the name William Evans and who was assigned as guard on the truck from which the money was stolen. McNabb initially appealed his conviction but later withdrew the appeal.

Following the procedure established by this Court, defendant Edwards’ case was screened and assigned to the summary docket. For a discussion of this full screening and summary docket procedure see State v. Duhon, 340 So.2d 151 (La.1976, on rehearing). After oral argument we determined the case warranted assignment to a justice for full written opinion treatment.

Defendant relies on six assignments of error, five of which involve legal issues governed by clearly applicable principles of law and of no particular interest except to the parties. We therefore have discussed and disposed of them in an appendix attached to this opinion which remains a public record of this Court but which is not to be published in the Southern Reporter.

Defendant’s sixth assignment of error asserts that his conviction should be set aside because there is insufficient evidence to establish his guilt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Although this issue was not raised by motion for a new trial (see C.Cr.P. art. 851(1)), we now consider sufficiency of evidence when the matter is simply raised by a formal assignment of error. State v. Temple, 394 So.2d 259 (La.1981); State v. Peoples, 383 So.2d 1006 (La.1980).

Where formerly we reviewed convictions to determine among other things whether there was simply some evidence, or any evidence, to support the trial fact finder’s determination of guilt, (La.Const. art. V, § 5 (C)), the present standard for minimal due process as mandated by Jackson v. Virginia is a review to ascertain whether any rational trier of fact could have found defendant guilty beyond a reasonable doubt, accepting the facts most favorable to the prosecution.

While the appellate review standard necessarily entails for its application some assessment or ascertainment of the evidence presented at trial, we are nevertheless constrained not to serve as finders of fact. La.Const. art. V, § 5(C).

Furthermore, where, as in this case, defendant’s guilt is supported entirely by circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. R.S. 15:438. Correlating this rule relative to circumstantial evidence with Jackson v. Virginia, we concluded in State v. Austin, 399 So.2d 158 (La.1981), that: “when we review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.”

One state witness, James Michael Green, testified that Edwards owned and regularly drove a white Ford recreational vehicle like the one used in the crime. This witness had seen Edwards driving the vehicle about noon on the day of the crime (the theft occurred between 4:50 and 5:00 P.M.). Edwards took the vehicle to Mississippi the following day and registered it to be sold at the auction.

Edwards had owned a used car business on the West Bank in Westwego which he had sold just over a month before the theft. McNabb was a friend of and had worked for Edwards as finance manager of the used car retail business. When Edwards sold the business, he retained a corner of the lot from which he conducted wholesale automobile business.

Defendant presented two witnesses who testified that they had seen him paint the van, using a stencil. According to these witnesses, Edwards himself did at times touch up his vehicles including those which from time to time he took to the auction. Presumably, defendant presented these witnesses in an effort to show that it was not unusual for defendant’s vehicles to be painted over and for him to do the painting himself. He argues that the painting was before the theft of July 26, that he had indeed painted over the word “Attala.” However, the testimony of the witnesses does not make the time clear. They were only able to say that they observed defendant painting the vehicle prior to the time that they learned of the crime. One witness testified that he heard about the crime from another car dealer who had read about it in the newspaper. The state introduced evidence that the newspaper account of the incident did not run until several days after it had occurred.

Neither defendant nor his co-defendant McNabb took the stand. Edwards’ principal thrust was to attack the reliability and value of the testimony of Officer Burnham. Burnham, who was off duty at the time of the crime, did not report the incident he had witnessed involving the Purolator truck and the recreational vehicle until the following morning when at roll call at the police station he learned of the Purolator theft of the previous day. His explanation of this delay was that he was uncertain of the support he would have received from the police department had he acted upon a mistaken conclusion while he was off duty. Furthermore, one part of his testimony may have been suspect, or at least, unclear. On recall to the stand, Burnham said, that “I never saw any writing....” This testimony followed his outset testimony that, when he saw the white recreational vehicle with the orange stripe alongside the Purolator truck (the same vehicle he later identified as the vehicle at the Gulfport auction lot), he had observed the word “Attala” on its side.

The state’s circumstantial evidence against defendant Terry Edwards was, then, as follows: McNabb stole the money, threw it into a vehicle driven by another unidentified individual, and the vehicle sped off. That vehicle was a white Ford recreational vehicle with an orange stripe, a vehicle shown to have been owned and regularly driven by Edwards. McNabb was a friend of Edwards and had been the finance manager for Edwards’s retail used car business. Approximately 4V2 hours before the vehicle pulled alongside the Purolator truck, Edwards had been observed driving his recreational vehicle on the West Bank. At some point in time near the date of the theft, Edwards was seen painting over the word “Attala” appearing on the side of the RV. On the afternoon following the theft, Edwards drove the RV bearing the painted over “Attala” to Gulfport, Mississippi, where he registered the vehicle with a wholesale auction lot. Finally, when Edwards learned that he was wanted for questioning in connection with the theft, he phoned the police from Jackson, Mississippi.

Was Edwards the driver of the recreational vehicle on July 26 at approximately 5:00 P.M. when it pulled alongside the Purolator armored truck? The circumstantial evidence proves that he was if every reasonable hypothesis to the contrary has been excluded. The RV might have been driven at the critical time by someone else (a friend of Edwards’ or McNabb’s? a temporary misappropriator?) Is this a reasonable hypothesis? The trial jury concluded that it was not. We are not prepared to say as a matter of law under the circumstantial facts presented to the jury that the latter was a reasonable hypothesis.

We therefore determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could well have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.

Decree

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

AFFIRMED.

      . By a motion filed in the trial court, defendant McNabb withdrew his appeal.

      . In the photograph taken at the auto auction in Gulfport and introduced into evidence by the state, the word “Attala” although painted over is nevertheless visible through the paint.

      . As defendant did not assign error to the trial court’s instructions to the jury, we presume that the judge gave the correct instructions concerning circumstantial evidence.


text:
    STATE of Louisiana v. Gregory DANIELS.
    No. 80-KA-2821.
    Supreme Court of Louisiana.
    July 2, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David Plavnicky, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    John J. Dolan, New Orleans, for defendant-appellant.
   PER CURIAM.

In sentencing defendant to the maximum sentence of 24 years as a second offender, the trial judge emphasized that defendant had presented “false evidence on this witness stand”. He did not state for the record any other considerations taken into account or the factual basis for any considerations, as required by C.Cr.P. art. 894.1C.

The false testimony referred to by the trial judge was actually given by a state witness. Although the testimony was favorable to defendant, he cannot be charged with responsibility for its presentation or its untruthfulness.

Because the only consideration for sentencing stated by the trial judge had an erroneous factual foundation, and because the trial judge otherwise failed to comply with C.Cr.P. art. 894.1, the apparently severe maximum sentence must be set aside and the case remanded for resentencing and for compliance with C.Cr.P. art. 894.1.

Accordingly, the conviction is affirmed, but the sentence is set aside, and the matter is remanded for resentencing.


text:
    John Wayne ERWIN v. EXCELLO CORPORATION et al.
    No. 80-C-2348.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re John Wayne Erwin, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. No. 13478.

Writ denied.

LEMMON, J., would grant the writ.


text:
    Mary J. BECKWITH, Individually and on Behalf of her minor Daughter, Carolyn Lee Beckwith v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 81-C-0541.
    Supreme Court of Louisiana.
    April 17, 1981.
   In re Mary J. Beckwith, applying for reconsideration of denied writ of April 6, 1981, Court of Appeal, First Circuit. No. 13704. Parish of St. Tammany.

Not considered. See La.Sup.Ct. Rule 9, Section 6.


text:
    Yvonne THOMAS, Individually and as Administratrix of the Estate of her Minor Child, Stacey A. Thomas, and Albert Thompson v. TRANSPORT INSURANCE COMPANY, United Transport Company, and Layman Riley Brittain.
    No. 81-C-0857.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Yvonne Thomas, et al., applying for writs of certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 396 So.2d 360.

Writ denied.

DIXON, C. J., and DENNIS and LEM-MON, JJ., would grant the writ.


text:
    Robert RAWLS v. Joseph DUGAS. BELLEFONTE INSURANCE COMPANY v. Gary J. DUGAS et al. Valmon L. WATTS and Lonnie W. Watts v. STATE FARM INSURANCE COMPANY et al. Bruce ALBRITTON v. Gary DUGAS.
    No. 81-C-0984.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Bellefonte Insurance Co., James H. Barksdale, and Barksdale Enterprises of Denham Springs, Inc., applying for certio-rari, or writ of review to the Court of Appeal, First Circuit. Parish of Livingston. 398 So.2d 630.

Denied.


text:
    Robert RAWLS v. Joseph DUGAS. BELLEFONTE INSURANCE COMPANY v. Gary J. DUGAS et al. Valmon L. WATTS and Lonnie W. Watts v. STATE FARM INSURANCE COMPANY et al. Bruce ALBRITTON v. Gary DUGAS.
    No. 81-C-0930.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Bellefonte Insurance Company, James Barksdale and Barksdale Enterprises of Denham Springs, Inc., applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston. 398 So.2d 630.

Denied.


text:
    STATE of Louisiana ex rel. Frederick SMITH v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1007.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Frederick Smith, applying for writ of certiorari, prohibition, mandamus, or ha-beas corpus. Parish of East Baton Rouge. No. 10-76-445.

Denied.


text:
    James T. CLYNES v. Elaine Lowe CLYNES, Wife of James T. Clynes.
    No. 81-C-1329.
    Supreme Court of Louisiana.
    May 21, 1981.
   In re Elaine Lowe Clynes, applying for supervisory remedial writs and stay order. Parish of Orleans. No. 77-14554.

Not considered. Not timely filed. See La.Sup.Ct. Rules, Rule 10, § 5(b).


text:
    Dwight R. WALTON v. WILLIAM WOLF BAKING COMPANY, INC., Paul M. Teeney, and Liberty Mutual Insurance Company.
    No. 81-C-1209.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re William Wolf Baking Co., Inc., and Liberty Mutual Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 396 So.2d 962.

Writ granted.


text:
    Eula Simon JONES, et al. v. RECREATION AND PARK COMMISSION OF the PARISH OF EAST BATON ROUGE, et al.
    No. 81-K-1144.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Recreation and Park Commission of the Parish of East Baton Rouge, et al., applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 395 So.2d 846.

Denied.


text:
    Milton L. SMITH and Ann Janette Palmer Smith, Individually and d/b/a Smith’s Furniture & Appliance v. The TOWN OF LOGANSPORT and Maryland Casualty Company.
    No. 81-C-1122.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Milton L. Smith and Ann Janette Palmer Smith, applying for writs of certio-rari and review, to the Court of Appeal, Second Circuit. Parish of DeSoto. 395 So.2d 888.

Denied.

MARCUS, J., concurs in the denial of plaintiff’s application.

BLANCHE, J., concurs.


text:
    Ronnie McADAMS v. The BLACK & DECKER MANUFACTURING COMPANY, INC., et al.
    No. 81-C-1101.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Ronnie McAdams, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 395 So.2d 411.

Denied.


text:
    STATE of Louisiana v. Jan J. PORRETTO.
    No. 81-K-1359.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Jan J. Porretto applying for writ of certiorari. Parish of Jefferson. No. 80— 1980.

Denied. There is no showing that the presumption is not great and the proof is not evident.


text:
    The PARTNERSHIP OF MEYERS AND MORRIS and Arthur J. Morris, M.D. v. Phillip H. MEYERS, M.D.
    No. 81-C-1370.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Arthur J. Morris, M.D., Individually and on behalf of the Partnership of Meyers and Morris, applying for supervisory and remedial writs. Parish of Orleans. Nos. 81-5761 and 81-5762.

Denied.


text:
    STATE of Louisiana v. Ronald Lee MOON.
    No. 81-K-1336.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Ronald Lee Moon, applying for supervisory writs, and stay order. Parish of St. Mary. No. 109996.

Denied.


text:
    Alain R. SELIGMAN v. Darryl J. TSCHIRN.
    No. 81-C-0535.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Darryl J. Tschirn, applying for reconsideration of denied writ of April 27, 1981, on writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. No. 13964.

Not considered. The judgment is final. See, Rule 9, Section 6 and La.C.C.P. Arts. 2166-2167.


text:
    STATE of Louisiana v. Charles NELSON.
    No. 81-K-1143.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Charles Nelson, applying for writs of certiorari. Parish of East Baton Rouge. No. 7-79-817.

Granted. The ruling of the trial judge is reversed and the surety is ordered relieved of all responsibility on the bond and the bond forfeiture is set aside. La.C.Cr.P. Arts. 338, 339 and 340.


text:
    Yvonne THOMAS, Individually and as Administratrix of the Estate of her Minor Child, Stacey A. Thomas, and Albert Thomas v. TRANSPORT INSURANCE COMPANY, United Transport Company, and Layman Riley Brittain.
    No. 81-C-0857.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Yvonne Thomas, Individually, etc., et al., applying for reconsideration of denied writ of May 1, 1981, Court of Appeal, First Circuit. Parish of East Baton Rouge. 396 So.2d 360.

Not considered. Judgment final. See, Rule 9, Section 6.


text:
    Phyllis McKnight CATA v. William Arthur McKNIGHT.
    No. 81-C-1095.
    Supreme Court of Louisiana.
    June 1, 1981.
   MOTION AND ORDER

Now into Court come PHYLLIS McKNIGHT CATA and WILLIAM ARTHUR McKNIGHT, through their undersigned counsel of record, and on suggesting to the Court that this matter has been compromised and settled in full, and hereby request this Court to dismiss the above styled and captioned proceedings without prejudice.

Considering the foregoing motion,

It Is Hereby Ordered that the above styled and captioned matter is hereby dismissed without prejudice.


text:
    STATE of Louisiana v. David S. SILVER.
    No. 81-K-1272.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re David S. Silver, applying for writs of certiorari, or review. Parish of East Baton Rouge. No. 1-81-92.

Granted. Relator’s conviction is reversed and defendant discharged. Defendant was convicted of a crime not responsive to the crime charged.


text:
    Samuel L. BENJAMIN v. UNITED STATES STEEL CORPORATION, Elgin-Joliet-Eastern Railroad, Illinois Central Railroad and New Orleans Public Belt Railroad.
    No. 81-C-1228.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re New Orleans Public Belt Railroad, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 396 So.2d 332.

Denied.

LEMMON, J., would grant the writ.


text:
    Welmon B. CHAMBERS v. PAROCHIAL EMPLOYEES RETIREMENT SYSTEM OF LOUISIANA.
    No. 81-C-1229.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Welmon B. Chambers, applying for writs of certiorari and review, to the Court of Appeal, Third Circuit. Parish of Natchi-toches. 398 So.2d 102.

Denied.

DENNIS, J., would grant the writ.


text:
    Windle L. SHOLAR, Jr. v. EAST BATON ROUGE PARISH COUNCIL, et al.
    No. 81-C-1259.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Windle L. Sholar, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 290.

Denied.

DIXON, C. J., and BLANCHE, J., would grant writ.


text:
    Lawson GAYLE v. COMMERCIAL UNION ASSURANCE COMPANY.
    No. 81-C-1277.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re James P. Cox, applying for writ of certiorari, or review to the First Circuit, Court of Appeal. Parish of East Baton Rouge. 398 So.2d 604.

Denied.


text:
    Robert JONES v. Adriel ALEXANDER, d/b/a White’s Auto Store.
    No. 81-C-1286.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Robert Jones, applying for writs certiorari, and/or review, to the Court of Appeal, Second Circuit. Parish of Jackson. 399 So.2d 216.

Denied. Result correct.


text:
    Patsy PAYNE v. Thomas M. LOCKWOOD, Administrator of Office of Employment Security and the Parish of East Baton Rouge Recreation and Park Commission.
    No. 81-C-1287.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Patsy Payne, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 398 So.2d 607.

Denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    Cynthia LLOYD, Individually and as Tutrix of Doris Lloyd and Eric Lloyd v. STATE of Louisiana.
    No. 81-C-1256.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Cynthia Lloyd, individually and as tutrix of Doris Lloyd, and Eric Lloyd, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 206656.

Writ denied.

CALOGERO and WATSON, JJ., would grant the writ.


text:
    S. W. HAILE and Mrs. Oleta Haile v. Billy COOPER and Jack Cooper, d/b/a Cooper Brothers Construction, et al.
    No. 81-C-1269.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re S. W. Haile and Mrs. Oleta Haile, applying for writs of certiorari, and/or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 398 So.2d 1156. Denied.

BLANCHE, J., would grant the writ.


text:
    Robert HOLLAND, et al. v. HOME INSURANCE COMPANY, et al.
    No. 81-C-1223.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Robert Holland, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 396 So.2d 3.

Denied.

DIXON, C. J., and WATSON, J., would the wnt


author: MARCUS, J.

text:
    Edward I. DANIEL, III, and Eileen Percy Daniel v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT OF the STATE OF LOUISIANA.
    No. 81-C-1230.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re State of Louisiana, through the Department of Transportation and Development, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of West Feliciana. 396 So.2d 967.

Writ denied.

MARCUS, J.

would grant the writ to consider the correctness of the award of damages for mental anguish for the loss of the oak tree.


text:
    Willie O. NASH, et ux. v. WESTERN CASUALTY AND SURETY COMPANY, et al.
    No. 81-C-1308.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Willie 0. Nash, et ux., applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Natchi-toches. 398 So.2d 121.

Granted.


text:
    CITY OF LAFAYETTE or State of Louisiana v. Darold COMEAUX.
    No. 81-K-1214.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Darold Comeaux, applying for writs of certiorari, review, mandamus and stay order. Parish of Lafayette. City Court of Lafayette. Nos. SC — 21685 and SC-21686.

Granted.


author: CALOGERO, J.,

text:
    STATE of Louisiana ex rel. Alfred LANDRY v. CRIMINAL DISTRICT COURT, SECTION “E”, PARISH OF ORLEANS.
    No. 80-KH2938.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Alfred Landry, applying for writ of mandamus. Parish of Orleans.

Granted. The trial court is ordered to act on relator’s application.

CALOGERO, J.,

concurs. Information furnished this Court indicates relator has not received letter from district court of 2/6/80.


text:
    STATE of Louisiana ex rel. Willie E. JONES v. CLERK, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, and Mr. George Guidry, Esq., IDB, ATT.
    No. 80-KH-2574.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Willie E. Jones, applying for writ of mandamus. Parish of Orleans. Nos. 237-724, 227-605 and 259-924.

Granted. The Boykin guilty plea transcripts herein sought are ordered furnished relator.


text:
    STATE of Louisiana v. Richard N. GLOVER.
    No. 81-K-1413.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Richard N. Glover, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 279-883.

Denied, reserving to defendant the right to apply here for relief if he is prejudiced by the absence of the witness at trial.

MARCUS and BLANCHE, JJ., concur and would deny the writ.

DENNIS, J., would grant the relief requested.


text:
    STATE of Louisiana v. Mona W. THOMASON and Charles D. Thomason, Jr.
    No. 81-K-1227.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Mona W. Thomason and Charles D. Thomason, Jr., applying for writs of certio-rari, prohibition, mandamus and a stay order. Parish of Calcasieu. Nos. 3819-80 and 3820-80.

Denied.


text:
    Shederick ELLIS, Sr., et al. v. COMCO INSURANCE COMPANY, Gay & Taylor, Inc. and Agency Management Corporation.
    No. 81-C-1252.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Comeo Insurance Company and Agency Management Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. No. 11472.

Denied.


text:
    STATE of Louisiana v. Jimmy Murray DAWES.
    No. 81-K-1284.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Jimmy Murray, applying for writ of certiorari. Parish of East Baton Rouge. No. 3-80-355.

Writ denied.

WATSON and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Aaron HAMILTON v. Ross MAGGIO, Jr., Warden, Hunt Correctional Center.
    No. 81-KH-1294.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Aaron Hamilton, applying for writ of certiorari. Parish of Lafayette. No. 41985.

Writ denied.


text:
    STATE of Louisiana ex rel. Wendell A. MARTIN v. Judge Jerome WINSBERG, Section “C”, Criminal District Court, Parish of Orleans.
    No. 81-KH-1297.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Wendell A. Martin, applying for writ of mandamus. Parish of Orleans. No. 263-888.

Denied.


text:
    STATE of Louisiana ex rel. Charles BANKS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1344.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Charles Banks, applying for writs of certiorari, prohibition, mandamus and habe-as corpus. Parish of Orleans. No. 253-535, Sect. “J”.

Writ denied.

DENNIS, J., would grant writ.


author: MARCUS, BLANCHE and LEMMON, JJ.,

text:
    STATE of Louisiana v. Jimmy Lee MOBLEY.
    No. 81-K(A)-1181.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re State of Louisiana, through the District Attorney, Ronald C. Martin, applying for remedial writs. Natchitoches Parish. No. 62663.

Denied.

MARCUS, BLANCHE and LEMMON, JJ.,

would grant the writ.

The trial judge’s conclusions were based on insufficient information. The case should be remanded for a determination through specialized testing of the extent of defendant’s present communicative ability and of whether that ability can be improved by competent professional training and assistance.


text:
    STATE of Louisiana ex rel. Reverend Thurmond L. CAMPBELL, Jr. v. STATE of Louisiana.
    No. 81-KH-1237.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Reverend Thurmond L. Campbell, Jr., applying for remedial writs. Parish of Caddo. No. 114-189.

Writ denied.


text:
    STATE of Louisiana ex rel. Eric I. WHITE v. STATE of Louisiana.
    No. 81-KH-0523.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Eric I. White, applying for remedial writs. Parish of Orleans. No. 275-205, Sect. “D”.

Writ denied. Petitioner must first present these claims to district court.


text:
    STATE of Louisiana v. Ray Allen BOUDREAUX.
    No. 81-K-1139.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Ray Allen Boudreaux, applying for writs of certiorari, prohibition, mandamus and a stay order, from the 15th Judicial District Court. Parish of Vermilion. No. 22374.

Writ denied. Adequate remedy on review in event of conviction.

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


text:
    STATE of Louisiana ex rel. Allen ANDERSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0906.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Allen Anderson, applying for reconsideration of a denied writ of, May 1, 1981. Parish of Orleans. No. 233-762.

Denied.


text:
    STATE of Louisiana ex rel. Glenn ROCHE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2376.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Glenn Roche, applying for reconsideration of granted writ of April 27, 1981. Parish of Lafayette. No. 42319.

Denied.


text:
    STATE of Louisiana v. James ENGLISH.
    No. 81-K-1280.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re James English, applying for writs of review. Parish of Terrebonne. No. 97353.

Granted in part, denied in part. The trial court is ordered to conduct an in camera inspection of the complaining witnesses’ statements to determine if they contain exculpatory material to which petitioner is entitled. Otherwise, the application is denied.


text:
    LEAGUE OF WOMEN VOTERS, et al. v. The CITY OF NEW ORLEANS, et al. Daryl Claire Sins, Wife of/and Alvin R. CHILDRESS, III v. Ernest N. MORIAL, Mayor of the City of New Orleans, et al.
    No. 81-C-1536.
    Supreme Court of Louisiana.
    June 15, 1981.
   In re City of New Orleans, et al., applying for writ of certiorari or review, mandamus and stay order. Parish of Orleans. Nos. 79-12699; 79-5381 and 80-6256.

Granted. Trial of this matter stayed. The trial judge is ordered to grant a reasonable delay for completion of discovery prior to the next trial date.


text:
    Bobby R. NALL v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 81-C-1335.
    Supreme Court of Louisiana.
    June 16, 1981.
   In re Bobby R. Nall, applying for writs of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Rapides. 398 So.2d 201.

Granted.


author: DIXON, C. J.,

text:
    STATE of Louisiana v. Joseph A. FARACE.
    No. 81-K-1586.
    Supreme Court of Louisiana.
    June 16, 1981.
   In re State of Louisiana, through the District Attorney, Edwin O. Ware, applying for writs of certiorari, mandamus, prohibition, and a stay order. Parish of Rapides.

Granted. The ruling complained of is reversed.

DIXON, C. J.,

concurring:' I respectfully concur. As reluctant as I am to second-guess the trial judge when he rules against the state on an evidentiary question, the showing made here indicates that the trial judge is probably in error.


author: DIXON, C. J. and CALOGERO, J.,

text:
    In re Sabinus A. MEGWA.
    No. 81-0-1597.
    Supreme Court of Louisiana.
    June 18, 1981.
   In re Sabinus A. Megwa, applying for permission to take the Louisiana Bar Examination. Parish of Orleans.

Granted. Relator permitted to take bar examination pending compliance with resident alien requirement.

DIXON, C. J. and CALOGERO, J.,

concur, but are also of the view that “resident alien” means an alien living in the United States, not “resident alien” as defined in the immigration statutes.


text:
    Henry J. BROCK v. ST. JAMES PARISH COUNCIL, Jerry Fowler, Commissioner of Elections and Jim Brown, Secretary of State, et al.
    No. 81-C-1594.
    Supreme Court of Louisiana.
    June 18, 1981.
   In re Henry J. Brock, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of St. James. 400 So.2d 745.

Denied.

DIXON, C. J.,

concurs in the denial. However the order for plaintiff to post a bond was erroneous.