author: COWART, Judge.

text:
    LAKE FRANCES ESTATES, INC., Appellant, v. John M. TOOLE and Bessie M. Toole, his wife, Appellees.
    No. 82-485.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1983.

      Del G. Potter of Potter & Vason, Mount Dora, for appellant.
    Robert Q. Williams of Williams & Smith, Tavares, for appellees.
   COWART, Judge.

This is an appeal from the dismissal of a complaint by appellees, as owner of a lot in a mobile home subdivision, for a declaratory decree concerning the right of the appellants, Lake Frances Estates, Inc., to assess appellees’ lot under paragraph 39 of a “Declaration of Restrictive Covenants” executed by the original owner and developer of the mobile home park and from a denial of appellant’s claimed right to foreclose the lien of assessments and for attorney’s fees.

In 1971 West Cocoa Company, Inc., as owner, developed a multiple lot mobile home subdivision and recorded a “Declaration of Restrictive Covenants” in paragraph 39 of which the owner reserved the right to make regular annual assessments and special assessments against each lot in the subdivision. The declaration provided that such assessments would constitute a lien on lots with the right in the owner to costs and attorney’s fees upon foreclosure. In 1972 West Cocoa Company, Inc., conveyed certain real estate it owned in the subdivision to Environs Property Management, Inc., and by separate instrument specifically assigned to Environs, the owners’ rights under the Declaration of Restrictive Covenants.

Apparently, Trustees of the National Mortgage Fund had a lien of some type against some of the real property in the subdivision and this lien was foreclosed in 1976 and whatever rights and interests that were foreclosed passed by clerk’s certificate of title to Trustees. Apparently also appellant claims to have succeeded to whatever passed to Trustees under the foreclosure. Appellant conveyed a lot in the subdivision to appellees. Later appellant asserted the right to assess appellees’ lot under the provisions of paragraph 39 of the “Declaration of Restrictive Covenants.” Appellees then brought this action alleging in effect, and demanding that the court find, declare and decree, that while Environs succeeded to both the real property and the right to assess lots contained in paragraph 39 of the Declarations of Restrictive Covenants and while Trustees may have succeeded through foreclosure to the real property and to have conveyed it to appellant, nevertheless Trustees’ lien did not cover the right to assess lots contained in the Declaration of Restrictive Covenants and that right did not pass from Environs to Trustees and on to appellant. Appellant counterclaimed, claiming to have succeeded to the ownership of the right to assess contained in paragraph 39 of the Declaration of Restrictive Covenants and to foreclose a lien against appellee’s lot for the assessment it claims it has the right to make under the Declaration of Restrictive Covenants.

The trial court dismissed appellees’ complaint with prejudice and expressly declined to rule that appellant had succeeded to the right to collect lot assessments under the Declaration of Restrictive Covenants. Further, the court denied appellant’s counterclaim, including the claim for attorney’s fees under the provisions of the Declaration of Restrictive Covenants. The court did adjudicate that appellant had an “equitable right to collect lot assessments from the plaintiffs (appellees) since the defendant (appellant) is and has been providing services for the plaintiffs (appellees) and the other park residents.” The court gave ap-pellees ten days to pay their lot assessment arrearages and ultimately neither entered a money judgment against appellees nor did it foreclose the “equitable” lien that was adjudicated. Appellant’s appeal and appel-lees’ cross-appeal. We reverse.

The parties are entitled to have their legal rights adjudicated in accordance with the issues framed in their pleadings. There was no prayer for any equitable lien. Appellant either has, or has not, legally succeeded to the rights of the “owner” to assess lots, including appellees’ lot, under paragraph 39 of the Declaration of Restrictive Covenants. Although all lots subject to the restrictive covenants were subject to a lien for assessments made against them and that obligation, and the negative restrictions limiting the use of the lots, ran with the title to such lots, nevertheless, the original owner’s right to assess lots under paragraph 39 of the Declaration of Restrictive Covenants is an assignable contractual right that is independent of, and does not “run with,” the ownership of “common facilities serving the subdivision” or any other particular property. If appellee has lawfully succeeded to this independent contractual right to make assessments for services, that legal conclusion should be adjudicated to resolve this and future controversies as to that matter and, in that event, appellant would be entitled to the right to foreclose proper assessments and to attorney’s fees under the provisions of the Declaration of Restrictive Covenants. On the other hand, if appellant has not legally succeeded to Environs’ right to make assessments under paragraph 39 of the Declaration of Restrictive Covenants, appellees are entitled to an adjudication of that conclusion.

REVERSED AND REMANDED for further proceedings.

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

      . Any obligation implied in law or equity would, as in quantum meruit and unjust enrichment, be based not on the fact that services were provided, but on the fact that benefits were accepted or received. Of course, such obligations are terminable at will by the recipient.


source: Caselaw Access Project

author: SMITH, McFERRIN, Associate Judge.

license: Public Domain

text:
    Estill BREWER and Mary Brewer, his wife, Appellants, v. Ray T. HIBBARD and Lorraine E. Hibbard, his wife, Appellees.
    No. 82-519.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1983.

      Johnie A. McLeod, Apopka, for appellants.
    Mikel W. Carpenter of Jones & Morrison, P.A., Altamonte Springs, for appellees.
   SMITH, McFERRIN, Associate Judge.

This is an Appeal from a summary final judgment entered on February 1, 1982, directing appellants to remove certain encroachments from property owned by appel-lees. The trial court ordered appellants to remove three encroachments: 1) a frame sign which extends onto appellees’ property, 2) the corner of a building which extends a few feet onto appellees’ property, and 3) a portion of a service station located on appel-lees’ property which extends onto appellants’ property.

The order requiring removal of the two buildings appears to have been entered without considering the principle of balancing relative conveniences. Johnson v. Killian, 157 Fla. 754, 27 So.2d 345 (1946). If a building encroaches slightly on adjoining property and the encroachment is accidental, the trial court should balance the conveniences between the parties in determining whether to order the encroachment removed. Injunctive relief should be denied if the actual encroachment is not substantial and removal would result in only slight benefit. Monell v. Golfview Road Association, 359 So.2d 2 (Fla. 4th DCA 1978).

Nothing in the record before us shows whether the trial court applied this “balancing” principle. Upon remand the trial court should determine whether the cost of removing the slight building encroachment would be disproportionate with the benefit to be gained.

Further, the complaint filed by ap-pellees, plaintiffs below, makes no mention of the service station. Having no request before it for removal of the service station, the trial court erred in ordering its removal.

That portion of the order directing the removal of the frame sign and the remaining point on appeal do not warrant reversal. However, for the reasons stated above, the judgment of the trial court is

REVERSED and REMANDED.

COBB and SHARP, JJ., concur.


author: COBB, Judge. DAUKSCH, Judge,

text:
    Grady M. COOKSEY, Sr., and Harvey L. Spears, Appellants, v. Jane R. HARTGE, Edward W. Holmes, Harvey Parker, Rosamond Parker, Fannie N. Marshall, and Carolyn S. Hackler, Appellees.
    No. 82-1033.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1983.
    Robert W. Morrison of Maxwell W. Wells, Jr., P.A., Orlando, for appellants.
    Robert Q. Williams of Williams & Smith, Tavares, for appellees.
   ON MOTION FOR DETERMINATION OF FINALITY OF ORDER

COBB, Judge.

In response to the motion of appellants, this Court has determined that the order of dismissal herein appealed, which order was executed by the circuit court, on June 29, 1982, is a final, appealable order of dismissal. Calhoun v. Lee, 405 So.2d 1067 (Fla. 5th DCA 1981); Laytner v. Humble Oil and Refining Co., 262 So.2d 675 (Fla.1972). Our recent decision in Lawler v. Harris, 418 So.2d 1239 (Fla. 5th DCA 1982), is distinguishable in that it dealt with the mere granting of a motion, not the actual dismissal of the cause.

SHARP, J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting.

In my opinion, we should not be advising appellate counsel about the appealability of lower court orders. It is our function to dismiss appeals which come to us from non-appealable orders; or, it is our function to deny motions to dismiss appeals which are from appealable orders. It is not our function to issue advisory orders regarding the appealability of an order.


author: COBB, Judge.

text:
    Wallace R. PERKINS, II, Petitioner, v. The Honorable Volie A. WILLIAMS, etc., et al., Respondents.
    No. 82-1576.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1983.
    Leon D. Watts, Titusville, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for respondents.
   COBB, Judge.

The petitioner, Perkins, seeks a writ of prohibition to prevent his re-trial on a charge of robbery, his first trial on that charge resulting in a mistrial when the jury could not reach a verdict. At that time, the petitioner was acquitted by the same jury of another count charging him with grand theft. Since there was only one taking of property in the instant case, the underlying theft was a necessarily lesser included offense of the charged robbery. See Brown v. State, 206 So.2d 377 (Fla.1968). Perkins argues that he should be discharged in regard to the robbery count because a retrial thereon would place him in double jeopardy since he cannot be retried for the greater offense after acquittal of one of its constituent elements. He is correct.

The motion for discharge below was denied by the trial judge on authority of Hicks v. State, 414 So.2d 1137 (Fla. 3d DCA 1982). In Hides the defendant was charged with robbery and grand theft in the same information and was found guilty on both charges. It was held that he could not be sentenced on the lesser included charge of grand theft based on section 775.021(4), Florida Statutes (1977), and the Florida Supreme Court case of State v. Hegstrom, 401 So.2d 1343 (Fla.1981). But the following language also is found in Hicks:

A different result also obtains where ... the greater and lesser included offenses are prosecuted in two separate proceedings. In that event, ... acquittal on the lesser offense would bar, on double jeopardy grounds, a subsequent prosecution for the greater offense. Chikitus v. Shands, 373 So.2d 904 (Fla.1979); Sanford v. State, 75 Fla. 393, 78 So. 340 (1918).

414 So.2d at 1140.

The argument of the state is that the verdict of acquittal on the grand theft charge most probably was based on the insufficiency of the evidence to show that the money taken was of the value of $100.00 or more, whereas a robbery may occur irrespective of such value. Aside from its speculative nature, this argument misses the point: if the defendant was proven guilty at trial of the lesser included offense of petit theft under the count charging grand theft, he should have been convicted of the lesser offense, not simply acquitted. As the petitioner observes, the state attorney, in making the decision to separately charge him with grand theft, took the risk that an acquittal thereon would defeat the primary charge of robbery. Mahaun v. State, 377 So.2d 1158 (Fla.1979).

The petitioner’s Fifth Amendment right against double jeopardy prevents a retrial of the charge of robbery. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Accordingly, we issue the writ of prohibition to the trial court and direct that he discharge the defendant in regard to the robbery count.

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


author: CAMPBELL, Judge.

text:
    Harvey C. SIEGEL, Appellant, v. Edna SIEGEL, Appellee.
    No. 82-934.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1983.

      N. Alfred Winn, St. Petersburg, for appellant.
    Stephan J. Freeman of Mark R. Lewis, P.A., St. Petersburg, for appellee.
   CAMPBELL, Judge.

Harvey Siegel appeals the final judgment of dissolution which awarded the marital home, a one-half interest in certain jointly held mutual funds, and costs and attorney’s fees to Mrs. Siegel. We affirm in part, reverse in part, and remand with instructions.

The parties married in 1968 and Mrs. Siegel petitioned for dissolution in 1981. Shortly after the marriage, Mr. Siegel, using his own money, purchased some mutual funds, and at his broker’s suggestion, titled the funds jointly with his wife. At dissolution, the trial judge found that this arrangement created a presumption of gift to Mrs. Siegel that Mr. Siegel did not overcome, thus, as counsel for appellee concedes, applying a standard abrogated in Ball v. Ball, 335 So.2d 5 (Fla.1976).

Although this was reversible error, the trial judge did not have the benefit of our supreme court’s decision in Wright v. Wright, 422 So.2d 306 (Fla.1982). There, the court held that Ball applies to those dissolution actions instituted after the Ball opinion became final, and that the date of the conveyance of property to the other spouse is irrelevant. The court, therefore, disapproved our decision in Hart v. Hart, 377 So.2d 51 (Fla. 2d DCA 1979). While not enamored of the result in Wright, we are nevertheless bound by it. Therefore, we remand this case to the trial judge so that he may make an express finding, without regard for the pre-Ball presumption, as to whether or not a gift was intended. If he then finds an intention to make a gift, his division of the mutual funds may stand. Marsh v. Marsh, 419 So.2d 629 (Fla.1982). If he finds otherwise, he may, of course, if the facts and circumstances of the case dictate, make an appropriate award of lump sum alimony. If he finds neither a gift nor circumstances justifying lump sum alimony, he must award all of the mutual funds to Mr. Siegel. Our remand of this case with instructions to the trial court would, of course, not preclude either party from appealing the decision of the trial court if they should feel aggrieved. In all other respects, the final judgment is affirmed. Appellee’s motion for attorney’s fees is denied.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

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


author: NELSON, WILLIAM J., Associate Judge.

text:
    Kenneth Lee GRIER, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-1088, 82-1089.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1983.

      Jerry Hill, Public Defender, Bartow and Bryan E. Hopkins, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   NELSON, WILLIAM J., Associate Judge.

This is an appeal from a summary denial of appellant’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850 in which he claims ineffective assistance of counsel. We reverse.

On January 19, 1979, appellant pled guilty to grand theft. The trial court placed him on three years probation with the condition that he spend one year in prison. On November 12, 1980, appellant entered a plea of nolo contendere to an unrelated charge of grand theft. The court placed appellant on three years probation for this offense.

On August 27, 1981, appellant was charged with violating three conditions of his probation: 1) failure to submit monthly reports, 2) failure to pay supervision costs, and 3) failure to live and remain at liberty without violating any law in that he committed burglary of an automobile and a dwelling. The court revoked appellant’s probation and sentenced him to three years imprisonment for each charge of grand theft.

At the revocation hearing, defense counsel stated appellant’s privately retained attorney had recently withdrawn and the court had appointed the public defender to represent appellant. Defense counsel stated that he had been assigned to the case the morning of the hearing and requested a one week continuance. The court denied the request.

A probationer has a right to counsel at a revocation hearing if the probationer denies the violations alleged in the affidavit or if other substantial complicated reasons require counsel. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Van Cleaf v. State, 328 So.2d 568 (Fla. 2d DCA 1976); see also Watts v. State, 409 So.2d 222 (Fla. 2d DCA 1982). In the instant case, appellant denied committing the alleged burglaries and, therefore, competent counsel was required at the hearing.

In a motion for post-conviction relief, an aggrieved defendant need only show that the court-appointed counsel was not “reasonably effective.” Chambers v. State, 337 So.2d 845 (Fla. 2d DCA 1976). The record in the instant case does not conclusively show that appellant received reasonably effective counsel. The fact that defense counsel participated in the case for less than twenty-four hours tends to negate the requirement of competent representation. Chambers v. State, supra.

We, therefore, REVERSE the order and REMAND the cause for a hearing on the issue of whether appellant was denied his right to competent counsel.

GRIMES, A.C.J., and RYDER, J., concur.


author: OTT, Chief Judge.

text:
    Kevin MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1300.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1983.
    Jerry Hill, Public Defender, Bartow, and Deborah A. Adamson, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Kevin Martin appeals his judgment and sentence for possession of heroin, contending that the trial court erred in denying his motion to suppress. We reverse.

On December 4, 1980, the state charged appellant with possession of heroin contrary to section 893.13(l)(e), Florida Statutes (1979). Appellant filed a motion to suppress which was denied by the trial court after a hearing on the motion. Appellant pled nolo contendere, reserving his right to appeal the denial of his motion to suppress. The court sentenced appellant to three years probation.

On November 3, 1980, Officer Vaney observed a vehicle run a red light. The officer stopped the vehicle. The driver was unable to produce a driver’s license and was thereupon arrested. The officer requested appellant, who was a passenger in the car, for identification. Appellant voluntarily gave the officer his driver’s license. The officer called for a computer check on the appellant which indicated an outstanding warrant for appellant’s arrest under an Alabama charge. The officer arrested appellant based upon the warrant. The officer then searched appellant and took a brown pouch from his pants pocket. The pouch contained minute particles of residue which subsequently were established as a mixture of cocaine and heroin.

At the suppression hearing, the state conceded all the foregoing facts and that the warrant had been served on appellant on February 6, 1980; that appellant had been incarcerated in Alabama and released on October 16, 1980. The warrant, however, was not removed from the Tampa police computer until the day after appellant was stopped by Officer Vaney and a check of appellant’s story proved accurate.

We hold that the trial court improperly denied appellant’s motion to suppress. Officer Vaney did not have independent probable cause to arrest appellant. The officer relied solely on erroneous information received by radio that there was an outstanding Alabama warrant for appellant’s arrest. The warrant was void at the time appellant was arrested. An otherwise illegal arrest cannot be insulated from challenge by the fact that the executing officer relied on erroneous radio information dispatched by a fellow officer or employee. Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). A void or nonexisting warrant cannot be the basis for a legal arrest and search. Pesci v. State, 420 So.2d 380 (Fla. 3d DCA 1982). Since the contraband was seized pursuant to an unlawful arrest, it should have been suppressed as a fruit thereof. DeBord v. State, 422 So.2d 881 (Fla. 2d DCA 1982).

Based upon the specific facts of this case, we REVERSE the denial of appellant’s motion to suppress and subsequent judgment and sentence for possession of heroin.

RYDER and CAMPBELL, JJ., concur.


author: DIXON, Chief Justice. CALOGERO, J.,

text:
    LOUISIANA STATE BAR ASSOCIATION v. Maurice D. ARMAGNAC.
    No. 81-B-0945.
    Supreme Court of Louisiana.
    July 2, 1982.
   DISBARMENT PROCEEDING

DIXON, Chief Justice.

In this disbarment proceeding respondent is charged with receiving succession funds for his clients, failing to disburse them, commingling the funds with his own and converting over $15,500 of the funds to his own use. Respondent admitted the allegations, stating that he felt “his guilt was one of stupidity rather than dishonesty,” and that he had made restitution of all but $7,772.50 and was working toward quick repayment.

The commissioner recommended suspension for six months. The Committee on Professional Responsibility disagreed with the recommendation for such leniency as inappropriate for such a serious offense.

Respondent did not dispute any of the evidence adduced at the hearings, nor did he cross-examine any witnesses. His bank statement shows a deposit of the succession funds on November 16, 1979 ($26,516.62) when his bank balance was $90.06. Respondent had no other bank account. His own accounting showed that he paid out to heirs $8,318.70 by January 3, 1980, and nothing else until February 22, 1980. On February 1, 1980, the balance in his account was $73.65. No other payments were made until February 13, 1981. The final payments were made in September, 1981, nearly two years after respondent’s receipt of the funds, while the disciplinary proceedings were pending, and then only after some of the unpaid heirs had filed theft charges against him in criminal court.

The only defense raised in this case is that respondent did not intend to deprive the owners of their funds, and that they were ultimately repaid. As witnessés, he presented three of his clients who trusted him and knew him as an honest man. Respondent testified that he used the funds to travel to England and Panama. He said:

“As I indicated in my letter to Mr. Deas on October the 7th, 1980, I have no defense for my failure to disburse these funds immediately upon receipt. ' The funds were improperly used. They were improperly used out of stupidity, not out of greed or enhancement of my way of life or style of lifestyle. I did not go out and have a good time and run around and buy automobiles and things of that nature. I relied on verification of a bank officer from London that a certain loan had been approved and would be disbursed for a client, and on the strength of my client’s assurance that I’d be reimbursed, I made the mistake and went to London, and after being there for three weeks the loan fell on its face and I was out some almost $6,000.00. Then I made a second trip to Panama on the same basis, but a different transaction. That, too, fell on its face, which put in the sum of over $8,000.00, almost $9,000.00.... ”

There is neither explanation nor corroboration of respondent’s excuse. As mitigation, it lacks both detail and substance.

These violations of Disciplinary Rule 9-102 are of the most serious nature.

“The misuse of a client’s funds by an attorney represents the gravest form of professional misconduct. It strikes at the heart of public confidence in the legal profession.” Louisiana State Bar Association v. Selenberg, 270 So.2d 848, 849 (La.1972).

The interest of the public and the bar itself requires disbarment.

It is therefore ordered that the name of Maurice D. Armagnac be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked and canceled, all at his cost.

CALOGERO, J.,

dissents being of the view that a substantial suspension from the practice of law is the more appropriate imposition of discipline.

WATSON, J., dissents; a long term of suspension is appropriate.


author: DENNIS, Justice. MARCUS, Justice BLANCHE, Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Robert JACKSON.
    No. 82-KA-0332.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 28, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John F. Craft, Asst. Dist. Atty., for plaintiff-appellee.
    Ronald J. Rakosky, New Orleans, for defendant-appellant.
   DENNIS, Justice.

The defendant, Robert Jackson, was convicted by a twelve person jury of second degree murder, La.R.S. 30.1, and was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. In his appeal, he alleges thirty assignments of error. We find potential merit in his contention that his confession and certain physical evidence should have been suppressed because of the illegality of his arrest. However, due to the erroneous rulings of the trial judge during the hearing on his motion to suppress, which prevented the defense counsel’s inquiry into the circumstances of the defendant’s arrest and subsequent interrogation, we cannot determine whether the defendant’s confessions were products of constitutional violations. Therefore, we remand this case to the trial judge with the instruction to conduct a hearing and resolve this matter in a manner consistent with the views we express in this opinion.

The body of Whitney Schultz, a New Orleans firefighter, was found under a bed in Mason’s Motel at about 3:30 p.m. on September 24,1979 by a motel housekeeper. The motel room did not contain any signs of a struggle. During his homicide investigation, New Orleans police Sergeant Wayne Cooper received information from fellow officer Detective Vivian Jackson about a false complaint of rape and kidnapping she had investigated at the same motel room at approximately 1:00 p.m. on September 23, 1979, the day before Schultz’s body was found. Upon receiving the complaint, Officer Jackson went to the motel and found four persons present in the room: Edward Wynn, who registered for the room under the name of James Davis, Audrey Brown, Stephanie Johnson and Robert Jackson, the defendant herein, who correctly identified himself. Audrey Brown was responsible for the complaints of rape and kidnapping. Detective Jackson decided after talking to her that the complaints were part of a hoax designed to obtain free transportation to her home in Florida. No action was taken on the complaint.

Solely on the basis of the information that the defendant and his companions had been present in the motel room some 26 hours before the discovery of Schultz’s body, the New Orleans Police placed a notice that the foursome was wanted in connection with a murder in the National Crime Information Center’s computer. Insofar as the record discloses, Cooper was not aware of the time of Schultz’s death, or whether the room had been rented to other persons after the defendant’s group had departed.

Robert Jackson and Audrey Brown were arrested in San Diego, California on October 9, 1979. They were taken in for questioning, and both gave statements to the San Diego police. New Orleans police, armed with an arrest warrant issued partly on the basis of these statements, went to California to collect Jackson. He waived extradition, and the New Orleans police returned to Louisiana with him, the statements and information relayed to them by the San Diego police, and a purse seized by San Diego police that supposedly belonged to Schultz’s girlfriend.

In New Orleans, during custodial interrogation, Robert Jackson signed a statement admitting to the murder of Whitney Schultz. He told of how the foursome had stopped in New Orleans because his car had broken down during their journey from Orlando, Florida to San Diego. Jackson stated that he and Ed Wynn met the victim at an automatic banking teller, asked Schultz for a ride, and invited him up to their motel room. Jackson said that while the two women were hiding in the bathroom, he strangled Schultz with his belt but stopped when the victim began to bleed from the nose and mouth. According to Jackson’s statement, he and Wynn put Schultz under the bed, travelled to San Diego with the two women in Schultz’s car, and used Schultz’s VISA card to purchase food and gas along the way.

Jackson moved to suppress his statements and the purse on the ground that they were products of his illegal arrest in California. During the motion to suppress hearing the trial court sustained the state’s objection to defense counsel’s cross-examination of witnesses pertaining to facts surrounding the arrest, interrogation and confession in California. The defendant’s attorney was also prevented from inquiring into whether the California statements were used by the New Orleans police in their interrogation of the defendant. The only evidence presents ed by the state at either the motion to suppress hearing or the trial to demonstrate the validity of Jackson’s arrest was testimony that Schultz’s body was found in the same motel room that the defendant had used one day earlier.

In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the United States Supreme Court held that a confession obtained as a direct result of an arrest made without probable cause should be suppressed. When the defendant challenges the admissibility of a confession on the ground that it was the result of an arrest made without probable cause, “the burden of showing admissibility rests on the prosecution.” State v. Scott, 355 So.2d 231 (La.1977), citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). See State v. Franklin, 353 So.2d 1315, 1318 (La.1977). This affirmative showing must be made by establishing that probable cause existed to arrest the defendant or, if the arrest was unlawful, by showing that the causal connection between it and the subsequently obtained confession was so attenuated that the confession could not properly be considered as a fruit of the illegal arrest. State v. Scott, supra, citing Wong Sun v. United States, supra. See, State v. Jenkins, 340 So.2d 157 (La.1976).

Any lawful arrest, whether war-rantless or pursuant to an arrest warrant, must be based upon probable cause to believe that the person arrested has committed or is committing an offense. State v. Scott, supra; State v. Herbert, 351 So.2d 434 (La.1977); State v. Ranker, 343 So.2d 189 (La.1977); State v. Jackson, 337 So.2d 508 (La.1976). Although the measure of probable cause does not require that the arresting officer have sufficient proof to convict the accused, the arrest may not be predicated upon mere suspicion. State v. Scott, supra; State v. Randolph, 337 So.2d 498 (La.1976).

In discussing the factors to be considered in determining when the connection becomes so attenuated that suppression of a confession resulting from an unlawful arrest is not required, the United States Supreme Court, in Brown v. Illinois, stated:

It is entirely possible, of course, as the State here argues, that persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality. But the Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession. They cannot assure in every case that the Fourth Amendment violation has not been unduly exploited. See Westover v. United States, 384 U.S. 436, 496-497, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).
While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or ‘but for’ rule. The petitioner himself professes not to demand so much. Tr. of Oral Arg. 12, 45, 47. The question of whether a confession is the product of free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, see Johnson v. Louisiana, 406 U.S. 356, 365, 92 S.Ct. 1620 [1626], 32 L.Ed.2d 152 (1972), and, particularly, the purpose and flagrancy of the official misconduct are all relevant.... Brown v. Illinois, supra, 422 U.S. at 427, 95 S.Ct. at 2261.

Serious errors occurred in the pretrial hearing when the defendant Jackson’s counsel was prevented from ascertaining whether there was probable cause for his arrest in California and whether the statements and purse obtained there were used during the Louisiana interrogation. We are unable to conclude from the record before us that the state carried its burden of establishing the admissibility of the defendant’s confession by either showing that probable cause existed to arrest the defendant or that the causal connection between an unlawful arrest and a subsequent confession had been broken for Fourth Amendment purposes.

Normally, reversal is required when trial error permits a jury to be exposed to an incriminating statement by the defendant, when that statement might not be admissible, if inquiry had been permitted which was curtailed by the erroneous trial ruling. State v. McGraw, 366 So.2d 1278, 1289-90. (La.1979). Nevertheless, when the error has occurred in a ruling during a hearing on a pre-trial motion to suppress a confession, our recent practice has been to remand the motion for a reopened hearing to admit the omitted or improperly excluded evidence. State v. Scott, 355 So.2d 231 (La.1978); State v. Hills, 354 So.2d 186 (La.1977); State v. Simmons, 328 So.2d 149 (La.1976). As we explained in Simmons, 328 So.2d 153, by this practice “the error might be eliminated upon another trial of the motion to suppress,” and a new trial on the merits be avoided if in fact no error at such trial has occurred. State v. Edwards, 375 So.2d 1365, 1366 (La.1979).

We find appropriate this procedure of remand for a reopened hearing on the motion to suppress. Accordingly, we remand the motion to suppress for the trial court to receive at the reopened hearing evidence as to probable cause for the arrest of the accused, in accordance with the views expressed above, and for it to make its ruling on the motion in the light thereof and of evidence previously received consistent with the holdings in State v. Scott and Brown v. Illinois, cited above. State v. Edwards, supra.

Because we have not completed our review of other substantial contentions raised by this appeal, we otherwise retain jurisdiction of this appeal, with the following directions: if the trial court finds that the confession and evidence should have been suppressed, it is directed to grant the defendant’s motion for a new trial (and the present appeal will be mooted); if, on the other hand, the trial court reinstates its denial of the motion to suppress, it is ordered to transmit to this court its ruling and the record of the reopened hearing on the motion to suppress, in order that this court may complete its review of the issue under the assignments of error previously made and any further ones made as a result of the rulings at the reopened hearing — as well as for us to complete our review of the remaining assignments of error raised by this appeal. State v. Edwards, supra.

Decree

Accordingly, the motions to suppress the confession and evidence are remanded to the trial court for further proceedings in accordance with the views and directions expressed by this opinion. In accordance with and subject to the directions expressed by this opinion, this court otherwise retains jurisdiction of this appeal.

REMANDED.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and assigns reasons.

WATSON, J., dissents being of the opinion that there was attenuation sufficient to validate the statement taken in New Orleans.

MARCUS, Justice

(dissenting).

Even assuming no probable cause existed to arrest defendant, I consider defendant’s confession obtained in New Orleans after his arrest, waiver of extradition and return from San Diego to be a product of his free will. In other words, the causal connection between the alleged illegal arrest and the subsequently obtained confession was so attenuated that I do not consider the confession to be a fruit of the alleged illegal arrest. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

I respectfully dissent being of the opinion that the second inculpatory statement was voluntarily given and sufficiently attenuated by time and circumstances from any irregularities concerning his arrest in California.

LEMMON, Justice,

concurring in Denial of Rehearing.

The decision on original hearing does not mean there was no probable cause for defendant’s arrest in California. Neither does the decision mean that defendant’s confession in Louisiana, six days after his California arrest with an intervening waiver of extradition, was not so attenuated as to be free of any taint of a possible illegal arrest. However, one of the factors to be considered in determining attenuation is the purpose and flagraney of the alleged illegal misconduct, and the trial judge at the hearing on the motion to suppress incorrectly denied defendant the opportunity to inquire into the details of the California arrest.

The trial judge also erred in stating that the defendant had the burden of proving the inadmissibility of the confession. See La.C.Cr.P. Art. 703 D.

When all of these factors are considered, it is appropriate to remand for a reopened hearing on the motion to suppress.

      . The record from the trial contains the testimony of Helen Brown that she and defendant were arrested while fighting on a public street in California, and the prosecutor indicated in oral argument that the arresting officer found the murder victim’s car and his girl friend’s purse. However, neither of these facts was established at the motion to suppress.


author: BLANCHE, Justice.

text:
    Phil John MARTIN v. H.B. ZACHRY COMPANY, et al.
    No. 82-C-1221.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 7, 1983.

      Gordon Hackman, Boute, for applicant.
    Darryl J. Foster, New Orleans, for respondent.
   BLANCHE, Justice.

In this case we are asked to determine whether the plaintiff, Phil John Martin, proved by a preponderance of the evidence the existence of a causal connection between an employment-related accident and a ruptured disc discovered and surgically corrected more than two years later.

Following the surgery, Martin brought this suit against the defendants, H.B. Za-chry Company, the employer, and Employers National Insurance Company, the employer’s workmen’s compensation carrier, to recover workmen’s compensation benefits for total and permanent disability, plus medical expenses, damages, and attorney’s fees. The trial court dismissed Martin’s suit, finding that he had not carried his burden of proving the causal connection between the injury and the accident. The court of appeal affirmed, finding that Martin had not showed that there was a reasonable possibility of a causal connection between the accident and injury. We disagree. Our review of the record shows that Martin established the causal connection between the accident and the ruptured disc by a preponderance of the evidence. Accordingly, we reverse, 411 So.2d 1123 (La.App. 1982).

CAUSATION

The evidence is uncontroverted that the plaintiff, an electrician, did sustain a back injury on September 24, 1975 during the course and scope of his employment. Martin, while carrying a load at the Zachry job site at the Union Carbide Plant in Taft, Louisiana, slipped on some steel concrete-reinforcing rods and twisted his body as he fell to the ground. Because of a sharp pain in his lower back, Martin could not continue movement and had to be transported by ambulance to the office of Dr. Walter Brent, an orthopedic surgeon.

Dr. Brent diagnosed the plaintiff as having a “very acute back sprain.” Otherwise, the neurological and orthopedic tests performed by him were normal. Martin’s complaints of back pain persisted, however, and Dr. Brent performed a myelogram. The results of this test proved normal also, and Martin was referred to Dr. John Jackson, a neurosurgeon. The neurological examinations and tests performed by Dr. Jackson also proved normal, so he performed a dis-cogram, a test designed to detect the presence of a ruptured disc. The discogram proved negative. Martin remained under the care of Dr. Brent until January 7,1976, when he was discharged as being able to return to work. Up until that time, Martin had been paid workmen’s compensation benefits and medical expenses totaling $4,250.34.

From the time of his discharge from Dr. Brent until August, 1977, plaintiff received treatment from a chiropractor. At about that time, at the insistence of his attorney, Martin was examined by yet another neurosurgeon, Dr. Richard Levy, who found no evidence of a ruptured disc. Finally, in September, 1977, while hospitalized with another ailment, plaintiff was referred to still another orthopedic surgeon, Dr. Courtney Russo. Finding fault with the diagnoses of the earlier examining physicians, Dr. Russo performed another myelogram, which he interpreted as showing an abnormality. Martin submitted to surgery, and Dr. Russo repaired what he determined to be a rupture at the “L-5 level.”

The plaintiff in a workmen’s compensation action has the burden of establishing by a preponderance of the evidence the causal connection between his disability and the accident. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977); Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La.1974); Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973). We find that the medical testimony in this case establishes the existence of a causal connection between the accident and the injury by a preponderance of the evidence.

The evidence is uncontradicted that Martin had no problems with his back prior to the accident. Since the accident, however, and up until the time of the surgery, Martin was in'continuous pain. Dr. Brent, testifying by deposition, stated that the myelo-gram he had performed showed no signs of “nerve root compression.” However, on cross-examination, he admitted that the results of the myelogram did show a swelling of the nerve root at the L-5 level. He interpreted this swelling as a normal variation. Dr. Brent admitted that a myelogram is only 80 percent accurate in diagnosing a ruptured disc, and, under certain conditions, might be only 50 percent accurate.

Dr. Jackson testified, also by deposition, that even though the results of all of his examinations and tests were normal, he had expected the discogram to show a rupture at the L-5 level and was surprised when none appeared. In a letter to .Dr. Brent before the discogram, Dr. Jackson apprised him that his interpretation of the myelo-gram revealed a “large dilated nerve root” at the L-5 level, on the right side, which could have been caused by a disc bulge compressing the nerve root. This bulge would have been the cause of the plaintiffs pain.

Dr. Jackson also testified that it was possible to discover a ruptured disc during the course of surgery even where it had not been diagnosed by a myelogram or disco-gram prior to the operation. He estimated the discogram to be 98 percent accurate, but recognized that certain maladies may go undiagnosed no matter how many tests are performed. In his words, “Medicine is more of an art than a science.”

Dr. Russo, also testifying by deposition, stated that he interpreted the first myelo-gram to show an abnormality at the L-5 level. This testimony is consistent with Dr. Jackson’s initial interpretation of the first myelogram. However, contrary to the ultimate diagnoses of Dr. Brent and Dr. Jackson, Dr. Russo interpreted the abnormality to be consistent with a ruptured disc. This diagnosis was confirmed by the second mye-logram, whereby he found another abnormality at the “L-5 disc area on the right.”

We recognize that the factual findings of the trial court as to work-related disability are entitled to great weight on appellate review. Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979); Cadiere v. West Gibson Products Co., 364 So.2d 998 (La.1977). However, in this case, we are forced to conclude that the findings of the lower courts are manifestly erroneous.

The lower courts attached great weight to the opinions of the examining physicians that the ruptured disc had to have some cause other than the on-the-job accident. However, in cases such as these, the ultimate determination as to whether a plaintiff has proved the causation of his disability is made by the courts and not by medical experts. The courts apply legal tests to the facts of the case in order to achieve a just and equitable result. Causation is not necessarily a medical conclusion. Guillory v. USF & G Co., 420 So.2d 119 (La.1982); Haughton v. Fireman’s Fund American Insurance Co., 355 So.2d 927 (La.1978); Bertrand v. Coal Operators Cas. Co., 253 La. 1115, 221 So.2d 816 (1969).

We find that the medical evidence clearly establishes a causal connection by a preponderance of the evidence. The plaintiff was in good health prior to the accident, and his back pain manifested itself continuously thereafter. Dr. Russo, the surgeon who ultimately repaired the disc, contradicted the diagnoses of the two earlier examining physicians. He interpreted both myelograms to indicate the strong possibility of a ruptured disc. His diagnosis was ultimately borne out when the herniated disc was surgically repaired. All testimony indicated that the myelogram and disco-gram are 80 and 98 percent effective, respectively, in diagnosing a ruptured disc. This means that out of every 100 persons with ruptured discs who are tested, there will be between 2 and 20 persons who do not test positive. Apparently, the plaintiff, Phil John Martin, fell within this exceptional group. Therefore, we deem Martin to have carried his burden of proof by a preponderance of the evidence.

EXTENT OF DISABILITY

Martin claims that he is totally and permanently disabled because he cannot return to the same type of work he was performing at the time of the accident. He asserts that substantial pain prevents him from performing duties as an electrician and would have us characterize him in the “odd-lot” category of disabled workers.

In Oster v. Wetzel, 390 So.2d 1318 (La.1980), we adopted the so-called “odd-lot” doctrine which provides that the claimant is entitled to a total and permanent disability when he establishes a prima facie case that, because of the physical impairment and other factors such as mental capacity, education, and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. 390 So.2d at 1324. The odd-lot concept may also be applied in cases where the worker, because of his injury, is in such substantial pain that work becomes an overburdening task. Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980); Lattin v. Hica Corp., 395 So.2d 690 (La.1981); Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980).

Based on the evidence in this case, we must conclude that Martin is not totally disabled under either the substantial pain or broader odd-lot doctrine. However, we do find, by a preponderance of the evidence, that Martin is permanently and partially disabled.

Based on his final post-operative examination of Martin, Dr. Russo assigned a permanent disability rating of 5-10 percent. He testified that he had determined the surgery to be successful and would have assigned such a rating to anyone who had a L-5 disc surgically repaired. Dr. Russo opined that Martin could perform gainful employment in his field as long as it did not involve exeessing bending at the waist or involve heavy lifting with the back. He stated that Martin could bend at the waist, climb, stoop, use heavy equipment with his hands, and perform most types of physical labor without any substantial or appreciable pain.

Martin has made no attempt to return to the type of work he was performing before the accident. He has, however, continuously worked for his father’s electrical contracting company since his benefits were terminated on January 7,1976. The company is engaged in the business of wiring residential homes under construction, and Martin is on full duty with the company. Plaintiff and his father testified that his duties included supervision and manual labor consistent with his ability to perform it as necessary, except for extensive climbing and close-quarters work in the attic. The elder Martin testified that the plaintiff generally sits on a low bench to install wiring and that he is able to stoop some in order to complete the job, but that the job does not entail extensive stooping or remaining in that position for any great length of time.

Martin’s wages on this job have been consistent; following the surgery, in 1978 and 1979, respectively, he has earned $14,-500 and $15,500. He has consistently been paid for 48 hours per week and has performed clerical, technical, and supervisory work for the company in those periods where he deemed himself unable to perform physical labor. His pay level has remained constant regardless of the capacity in which he has performed for the company. Martin’s wife testified at trial that his condition has improved since the surgery, and Dr. Russo’s post-operative examinations showed a steady physical improvement.

In our opinion, Martin has failed to prove that he is totally disabled under either the substantial pain or the broader odd-lot doctrine. All medical testimony shows that Martin can assume virtually the same duties for which he was employed prior to the accident, modified only to exclude excessive bending from the waist or heavy lifting involving the back. He can climb, bend, stoop, or use heavy equipment with his hands without any substantial pain. Martin is now 30 years old and a high school graduate. He has been gainfully employed as an electrician since his benefits were terminated and has not shown that he is so physically impaired or lacks the mental capacity, training, or experience such that no reasonably stable market for his services exists. If anything, Martin’s work history subsequent to the accident demonstrates that he is able to earn a living as an electrician substantially consonant with, if not roughly equal to, his employment prior to the accident. There exists at least no overwhelming physical obstacle to his finding similar electrical work should the present situation prove unsatisfactory.

Although Martin is not totally and permanently disabled, he is not precluded from receiving any compensation award at all. Dodd v. Nicolon Corp., 422 So.2d 398 (La.1982); Schouest v. J. Ray McDermott and Co., Inc., 411 So.2d 1042 (La.1982); Allor v. Belden Corp., 393 So.2d 1233 (La.1981). An employee may be deemed partially disabled if he is unable to perform the same duties in which he was customarily engaged when injured, or duties of the same or similar character for which he is fitted by education, training or experience. LSA-R.S. 23:1221(3). We find that the preponderance of the evidence conclusively establishes that the plaintiff, Phil John Martin, is permanently and partially disabled.

There was testimony to the effect that Martin’s prior job with Zachry involved the lifting and carrying of heavy loads. Indeed, Martin was injured when he slipped while carrying such a load. Dr. Russo specifically warned against such activity and testified that although Martin should be able to perform virtually all of his previously required tasks, the lifting of heavy loads with the back created a risk that Martin would rupture another disc due to the now weakened condition of his spine. Zachry obviously expects its electricians to carry heavy loads such as conduit pipe on the job-site. Since Martin is no longer able to perform such tasks, but substantially all others required by Zachry, he may be deemed permanently and partially disabled, cf. Dodd V. Nicolon Corp., supra; Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981); Lattin v. Hica Corp., supra; Dusang v. Henry C. Beck Builders, Inc., supra; see also Graham v. Jones Bros. Co., Inc., 393 So.2d 861 (La.App. 2nd Cir.1981), after remand, 412 So.2d 675; Skinner v. Baggett Transp. Co., 391 So.2d 555 (La.App. 4th Cir.1980).

BENEFITS DUE

Since Martin was injured on September 24,1975, he is entitled to weekly compensation benefits not to exceed 400 weeks from that date, with credit for benefits previously paid and for those weeks in which actual wages are earned. Since Martin has been continuously employed by his father’s electrical contracting company when benefits were terminated on January 7, 1976, he is entitled to compensation at the rate of 66%% of the difference between his weekly wages earned at the time of the injury and his weekly wages actually earned thereafter. If there occur any weeks in which Martin’s weekly wage with his father’s company, or any subsequent employer, equals or exceeds his weekly wage at the time of the accident, Martin is entitled to no compensation during that period. LSA-R.S. 23:1221(3); LeBlanc v. Commercial Union Assur. Co., 349 So.2d 1283 (La.App. 1st Cir.), writs denied, 351 So.2d 174 (La.1977). The maximum weekly compensation to be paid is $85.00 per week. LSA-R.S. 23:1202(1).

We find that Martin is entitled to receive partial permanent disability benefits commencing on September 24,1975. Since benefits of $85.00 per week were paid until January 7, 1976, the defendants are to be credited for the weekly payments made up until that date. Our review of the record shows that Martin earned a total of $9,910.33 during calendar 1976. Excluding the one week of that year where he was paid disability benefits, Martin’s weekly earnings amounted to $194.34 per week. At the time of the accident, Martin was earning $8.60 per hour, for a total of $344.00 per week. Sixty-six and %% of the difference is $99.77. However, the maximum benefit payable is limited to $85.00. LSA-R.S. 23:1202(1).

Martin earned a total of $13,621.71 during calendar 1977, making his weekly earnings $261.95. Sixty-six and %% of the difference between $261.95 and $344.00 is $54.69. In 1978, Martin earned $14,501.99 for a weekly total of $278.88. Sixty-six and %% of the difference is $43.41. In 1979, Martin earned $15,505.50 for a weekly total of $298.18. Sixty-six and %% of the difference is $30.54. Therefore, Martin is entitled to weekly benefits of $85.00 for calendar 1976, $54.69 for calendar 1977, $43.41 for calendar 1978, and $30.54 for calendar 1979. The record before us is complete through 1979, but we have no record of Martin’s earnings for 1980 to the present. His weekly benefits for those years and hereafter, however, are to be calculated by Employers National according to this formula as set out in LSA-R.S. 23:1221(3). Legal interest shall accrue on all past due installments from the date due until paid.

Martin has also requested that the defendants pay the medical expenses he incurred in receiving medical treatment subsequent to January 7,1976. His medical expenses incurred up until that time were paid by the defendants. Under LSA-R.S. 23:1203, the defendants are required to pay for all necessary medical, surgical, and hospital services, plus medications and any other non-medical treatment which are recognized by the laws of this state as legal. Additionally, the defendants must pay the actual expenses and mileage reasonably and necessarily incurred by Martin in order to obtain the services, medications, or prosthetic devices which the defendants are required to furnish under this section. Gourdan v. Rockwood Ins. Co., 368 So.2d 1156 (La.App. 3rd Cir.1979); Alexander v. Reed, 350 So.2d 179 (La.App. 1st Cir.), writs denied, 350 So.2d 1206 (La.1977); Reed v. Employers Mut. Liability Ins. Co. of Wisconsin, 303 So.2d 506 (La.App. 2nd Cir.1974); Dyson v. Travelers Ins. Co., 256 So.2d 468 (La.App. 4th Cir.1972). We recognize the legality of chiropractic treatment in this state, therefore the defendants must pay for the chiropractic treatment which Martin engaged to try to relieve his pain in the interim between the accident and the surgery. Gourdon v. Rockwood Ins. Co., supra. Therefore, the defendants are hereby ordered to pay for all of the above enumerated medically-related expenses actually incurred and proved by Martin as necessary to the treatment of his ruptured disc.

PENALTIES AND ATTORNEY’S FEES

Finally, Martin claims that the termination of benefits by the defendants and their failure to re-institute payment was arbitrary and capricious, and, as such, makes the defendants liable to him for penalties and attorney’s fees. Under LSA-R.S. 23:1201.2, if the termination and failure to re-institute payment are found to have been arbitrary, capricious, or without probable cause, the employer may be compelled to pay a penalty of 12% of the total amount of the claim, together with all reasonable attorney’s fees incurred by the claimant in prosecution of the claim. In our opinion, the termination of benefits by the defendants in this case was not arbitrary, capricious, or without probable cause. Therefore, they shall not be required to pay a penalty or the attorney’s fees incurred by Martin in the prosecution of this suit.

This section is penal in nature and must be strictly construed. Cole v. Sears, Roebuck & Co., 337 So.2d 900 (La.App. 3rd Cir.1976). A termination of compensation will not be held to have been arbitrary or capricious where the insurance carrier bases its decision to terminate on competent medical evidence. Breaux v. Marine Electric Co., 369 So.2d 196 (La.App. 3rd Cir.1979); Webb v. Turbex Const. Co., 368 So.2d 789 (La.App. 2nd Cir.1979); Thompson v. Natchitoches Parish Hosp. Service Dist., 335 So.2d 81 (La.App. 2nd Cir.), writs denied, 338 So.2d 298 (La.1976).

In this case, Employers had a reasonable basis for terminating benefits. The examinations of Dr. Brent and Dr. Jackson revealed no ruptured disc. Based on the best medical advice available at the time, Employers rightfully determined that Martin was not disabled when released by Dr. Brent on January 7,1976 as fit to return to work. The question of causation in this case is a close one, and it would be manifestly unfair to the defendants to assess penalties and attorney’s fees against them. cf. Rodriguez v. City of New Orleans, 384 So.2d 1006 (La.App. 4th Cir.1980).

DECREE

Therefore, for the reasons assigned, the judgments of the trial court and the court of appeal are reversed in their determinations that the plaintiff, Phil John Martin, had not proved causation. The plaintiff is entitled to partial permanent disability benefits pursuant to the provisions of LSA-R.S. 23:1221(3), dating from September 24, 1975, not to exceed 400 weeks, subject to a credit for prior benefits paid and actual wages earned. Legal interest shall accrue on all past due payments from date due until paid. The plaintiff is also entitled to all medically-related expenses actually incurred and necessary for the correction and treatment of his ruptured disc as set out in LSA-R.S. 23:1203. The plaintiff is not entitled to penalties or attorney’s fees, but the costs of these proceedings are taxed to the defendants.

REVERSED AND RENDERED.

LEMMON, J., concurs and will assign reasons.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Floyd QUEBEDEAUX.
    No. 82-KA-0072.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard E. Bou-dreaux, Jr., Dist. Atty., J. Phil Haney, Asst. Dist. Atty., for plaintiff-appellee.
    Keith Comeaux, New Iberia, for defendant-appellant.
   CALOGERO, Justice.

Defendant appeals his conviction by a six member jury of simple burglary in violation of La.R.S. 14:62 and his sentence to twelve years at hard labor. He argues that the trial judge erred in denying his motion for a new trial based on newly discovered evidence, and also that his twelve year sentence is excessive. Because the record does not reflect that the trial judge took into account any mitigating circumstances before imposing the maximum sentence allowed under La.R.S. 14:62, we vacate the sentence and remand the ease to the district court for resentencing. The conviction is affirmed.

By bill of information, the state charged defendant Floyd Quebedeaux with the December 15,1980, simple burglary of Kaizer’s Place.

At trial the state adduced the following information. Jean “Kaiser” Perez closed his pool hall, located near Breaux Bridge, Louisiana at 2:00 a.m. on December 15, 1980. Between then and 5:00 a.m., the rear window was removed and a microwave oven, a Magnelite pan, a rice cooker, boudin sausage and other items were stolen.

A Louisiana state trooper had been parked in the vicinity on the shoulder of the road around 4:25 a.m. the same morning writing accident reports. He noticed a truck parked in front of the pool hall. The truck’s driver exited and walked toward Kaiser’s. For a time he was out of sight behind some tall grass but then a person returned to the truck, put something in the rear and climbed into the driver’s side. Another person came from the building, also placed something in the rear of the truck and entered the truck on the passenger side. As the truck started and drove past, the trooper saw more definitely that it was a blue Ford with two white males inside. The trooper followed the truck. A check on the license number indicated that the truck was registered to defendant, Floyd J. Que-bedeaux of Route 2, Box 344, Amaudville, Louisiana. An inspection of Kaiser’s revealed that the front door lock had been damaged and the rear window had the glass completely broken out.

When the Sheriffs Department took over the investigation, Deputy Romero and others went to the defendant’s neighborhood. Quebedeaux’s blue Ford pick-up was parked in his driveway. After the deputies had been watching the house for about thirty minutes, the defendant emerged and drove the truck over to ask the deputies what was “going on.” It was then that Romero saw the Magnalite pan and rice cooker in the rear of Quebedeaux’s vehicle. Deputy Frederick advised defendant of his rights.

Defendant told the deputy that he and his wife had picked up his brother-in-law in Baton Rouge three days earlier and had returned with the items in the truck. He also said that he and his brother-in-law, Richard Bardsley, had been “headlighting” rabbits at about 2:00 or 2:30 a.m. that morning near Breaux Bridge and that a state trooper had followed them.

After trial, a jury returned a verdict of guilty. Following his conviction and prior to sentencing, defendant filed a motion for a new trial alleging the discovery of newly found evidence. After a hearing, the trial judge denied the motion for a new trial. Thereafter the judge sentenced defendant to twelve years at hard labor.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error defendant contends that the trial court erred in denying his motion for a new trial.

Attached to defendant’s new trial motion was an affidavit by his brother-in-law, Richard Bardsley. In this affidavit, Bards-ley (who was charged with defendant for the burglary in this case) stated that he and defendant had gone looking for jobs in the afternoon. They had stopped at a lounge (Theriot’s) in Breaux Bridge where Quebe-deaux had met friends and begun playing cards. Bardsley became bored and wanted to go “spotlighting.” Defendant told him to take the truck, fill it with gasoline so there would be enough to go job-hunting the next day, and go on without him. Since Bardsley did not know where to get gasoline “at that late hour”, someone at the bar offered to go with him. If Bardsley did not return to the bar before closing time, Que-bedeaux said he would hitch a ride home.

The affidavit continues that Bardsley and the unidentified man who left with him drove to a place in Church Point where the hunting was supposed to be good. Bardsley shot nine rabbits and headed back toward Breaux Bridge. On the way a rabbit ran across the road. To get one last rabbit, Bardsley stopped the truck, got out and followed the rabbit on foot. Bardsley entered the rear of a building where a window and frame had been dismantled. On the way out, he took a rice cooker and a pot which he then put in the rear of the truck. Bardsley’s affidavit states that the other man was driving the truck at this time but after Bardsley put the things in the back of the truck, they switched places and Bards-ley resumed driving. On the way back to Arnaudville, Bardsley’s companion indicated that he thought that they were being followed. Bardsley dropped off the unidentified man and continued to defendant’s house where he hid the rabbits and knocked on the door. When Quebedeaux answered the door, Bardsley told him about the rabbits and about being followed by the state trooper. The defendant became angry so Bardsley “thought it best not to discuss anything else.” When the defendant was “picked up on suspicion of burglary,” Bards-ley explained in the affidavit that he had been afraid to tell anyone about the events. Now, however, it bothered him that his brother-in-law had been found guilty of something he had not done.

At the hearing on the new trial motion, Bardsley took the stand but pleaded the fifth amendment. The notary before whom the affidavit was signed identified Bardsley as the man who had signed it in her presence. Mrs. Quebedeaux, defendant’s wife, also testified at the hearing, (defendant having waived the inter-spousal privilege of La.R.S. 15:461). Mrs. Quebedeaux stated that she had accompanied Bardsley, her sister’s husband, to the notary’s office where he signed the affidavit. Mr. Daniel Guidry, an assistant district attorney, testified that before trial Quebe-.deaux wrote in a letter to the district attorney that he and Bardsley had been hunting rabbits the night of the burglary and that they had been followed by the State Police. Following this testimony, the trial judge continued the hearing.

When the hearing resumed, Bardsley decided to testify on behalf of Quebedeaux. Bardsley’s initial testimony recounted the same sequence of events as had his affidavit. Additionally, he admitted that he had been convicted of receiving stolen goods, but denied having served time in the penitentiary. Bardsley also said that while he and defendant initially had the same attorney he had never revealed to the attorney that he, not the defendant, had committed the burglary.

Upon cross-examination, Bardsley could not remember the names of any of the people he and defendant had seen in Theri-ot’s Lounge; neither could he remember places they had gone to look for jobs or the people with whom they had spoken. He explained that Quebedeaux knew the people and had done the talking. He and defendant left home about 9:30 a.m. and arrived at Theriot’s around 1:00 p.m. or 2:00 p.m. in the afternoon. From then until 1:00 a.m. the next morning, according to Bardsley, he drank beer, talked with people and shot pool, and watched Quebedeaux play cards. When Bardsley left Theriot’s, he did take someone with him to show him the way to Lafayette to buy gasoline but he did not know the man’s name. After buying gasoline, the two returned to Breaux Bridge to hunt rabbits.

On further cross-examination, Bardsley said that he had told defendant about hunting and about taking the Magnalite pan and the rice cooker from the building. He also said that he had told the attorney who initially represented him and defendant “the same which is stated — well in my statement.” On re-direct examination, Bardsley said that he had been available to testify at defendant’s trial and would have done so.

In denying the new trial motion, the trial judge found the allegedly newly discovered evidence to be “incredible, to say the least,” although admittedly Bardsley had put himself in a precarious position since he still faced trial on the burglary charge for this same incident. The judge found it hard to believe that Bardsley had spent three or four hours “spotlighting rabbits”' with a total stranger without any idea of the man’s name. If Bardsley’s testimony were correct and defense counsel knew about this story, the judge then found it equally hard to believe “that an attorney would not have taken advantage of such information to look up witnesses who could have established the innocence of Floyd Quebedeaux.” Any one of several people could have been called at trial to confirm this story. Such people include the co-participant in the rabbit hunt or those with whom Quebedeaux played pool and cards until all hours of the night. The court also found it unlikely that defendant, as related by Bardsley, would have given up his truck to his brother-in-law while he was about fifteen miles from home with only the prospect of hitchhiking should Bardsley fail to return. Added to this was the assistant district attorney’s testimony about the letter wherein Quebe-deaux alleged that he went rabbit hunting with Bardsley the night of the burglary. In summary, the judge stressed that were this story true, Quebedeaux would surely have produced witnesses confirming his playing cards at Theriot’s Lounge on the night the crimes were committed elsewhere, if not as well, evidence confirming his loan of the truck and perhaps the departure of Bards-ley and his unidentified companion.

The trial judge properly denied defendant’s motion for a new trial. When a motion for a new trial is based upon newly discovered evidence, the defendant has to show that the evidence could not have been discovered before or during trial through the exercise of reasonable diligence. La.C.Cr.P. art. 851(3); State v. Fuller, 414 So.2d 306 (La.1982); State v. Simms, 410 So.2d 1040 (La.1982). The ruling on the motion for a new trial is committed to the sound discretion of the trial judge and will not be disturbed on appeal unless there is a clear showing of abuse of that discretion. State v. Fuller, supra; State v. Talbot, 408 So.2d 861 (La.1981) (On rehearing); State v. Spell, 399 So.2d 551 (La.1981); State v. Manning, 380 So.2d 54 (La.1980).

The evidence that defendant claims is newly found is the testimony (and affidavit) of Bardsley attesting that he committed the burglary while defendant remained at Theriot’s Lounge. However, at the hearing on the new trial motion, Bardsley said he had informed defendant’s trial attorney that he, not Quebedeaux, had committed the offense. This alone, if true, disqualifies the evidence as newly discovered.

On the other hand, even if one assumes that Bardsley was confused about telling his story to the defense attorney, and if one further assumes that Bardsley’s basic testimony about the evening is true, the evidence that Bardsley had defendant’s truck at the critical time is not new. In the latter event defendant knew that he had loaned his truck to his brother-in-law. Defendant knew that he was playing cards at Theriot’s and could have called one of the other players to testify as to his whereabouts. According to Bardsley, defendant even knew the person who had accompanied Bardsley to buy gasoline.

In State v. Motton, 395 So.2d 1337 at 1350 (La.1981), we affirmed a trial court’s denial of a motion for a new trial when the “witnesses could have been procured with the exercise of the slightest diligence.” Such a denial is equally applicable here. Of any number of people present in Theriot’s Lounge that evening, no one was called to testify at trial.

In this case, the credibility of the defendant’s brother-in-law Bardsley and his affidavit is also at issue. On review, great weight is given to a trial judge’s determination of credibility because he is in the best position to observe the demeanor of the witness. State v. Willie, 410 So.2d 1019 (La.1982); State v. Rodrigue, 409 So.2d 556 (La.1982); State v. Campuzano, 404 So.2d 1217 (La.1981).

The defendant has not carried the burden of showing that the “newly discovered evidence” could not have been discovered before trial. Therefore this assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, defendant contends that the trial judge erred in imposing an excessive sentence.

The trial judge imposed the maximum sentence for simple burglary — twelve years at hard labor. In imposing sentence, the judge referred to defendant’s past convictions and especially to the defendant’s application for a new trial, calling it “a mockery of our criminal justice system.” The judge considered “the entire motion was a spurious effort at reading the law and showing total disrespect for the law and all of its processes.” For these reasons, he concluded that there was an undue risk that defendant would commit other crimes during a period of a suspended sentence or probation, that the defendant was in need of a custodial environment and that a lesser sentence would deprecate the seriousness of the crime. On his own behalf, the defendant stated that he had no control over what Bardsley did. The judge then sentenced defendant to the maximum permitted for simple burglary, twelve years at hard labor. This sentence Quebedeaux challenges as excessive.

A trial judge is vested with wide discretion in imposing sentence. State v. Tilley, 400 So.2d 1363 (La.1981); State v. Daranda, 398 So.2d 1053 (La.1981). Nevertheless, this discretion is not unbridled. State v. Jones, 398 So.2d 1049 (La.1981); State v. Sepulvado, 367 So.2d 762 (La.1979). When considered in light of the particular defendant and the circumstances of the particular crime, a sentence may be found to be excessive even if it falls within the statutory limit. State v. Forshee, 395 So.2d 742 (La.1981); State v. MacDonald, 390 So.2d 1276 (La.1980); Sepulvado, supra.

This Court has stated that maximum sentences are reserved for cases involving the most serious violations of the charged offense and for the worst kind of offender. Jones, supra. In the instant case, this Court does not have an adequate record to determine whether this defendant is “the worst kind of offender.” Jones, supra. To begin with in regards to the judge’s comments on the motion for a new trial, truthfulness (or lack thereof) is “not [in and of itself] an acceptable basis for a relatively harsh penalty imposed on [a] defendant.” State v. Smith, 407 So.2d 652 (La.1981), State v. LaFleur, 391 So.2d 445 (La.1980).

And while we are not prepared to say that a man with the defendant’s record without significant mitigating circumstances might not still qualify as one of the “worst kind of offender^]” for whom the maximum sentence is reserved, the problem here is that it is not evident from the transcript that the trial judge did consider and properly weigh the mitigating factors against the aggravating factors.

The trial judge need not state for the record his consideration of each of the aggravating and mitigating circumstances enumerated in La.C.Cr.P. art. 894.1. The record, however, must reflect that the judge did consider these guidelines in particularizing the sentence to the defendant. State v. Guiden, 399 So.2d 194 (La.1981). The sentencing record, therefore, should reflect that the trial judge did consider not only the seriousness of the crime and the past criminal history of the defendant, but also defendant’s personal history (age, mental status, dependents, family ties, employment record, emotional and physical health) and his potential for rehabilitation. Jones, supra; State v. Molinet, 393 So.2d 721 (La.1981); State v. Jackson, 360 So.2d 842 (La.1978).

It seems likely that there were in this case some mitigating circumstances. Apparently Quebedeaux is a diesel and gasoline engine mechanic in his mid-thirties who has worked in oilfield related jobs for a number of years. He has a wife and children who depend upon him for support. His only prior felony conviction is for simple burglary which took place some thirteen years earlier when he was probably about nineteen years old. Defendant’s prior record also shows a ten year span without conviction (1967-1977) and, overall, only a pair of misdemeanor convictions after his 1967 burglary conviction. The judge mentioned no mitigating factors at sentencing.

Because the judge did not sufficiently articulate the reasons for and against imposing the maximum sentence as directed by La.C.Cr.P. art. 894.1, we find it necessary to vacate the defendant’s sentence and have him resentenced accordingly.

Decree

For the foregoing reasons, the defendant’s conviction is affirmed, his sentence to twelve years at hard labor is vacated and the case is remanded to the district court for resentencing.

SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

WATSON, J., concurs but would not remand for resentencing.

LEMMON, J., dissents from setting aside the sentence.

      . The bill of information also charged one Richard Bardsley with the same crime.

      . The sheriffs department returned the Mag-nalite pan and the rice cooker about noon that day, but the other items were never recovered. The estimated value of the stolen items was $1,800.00.

      . Bardsley had not yet been tried for the burglaries with which he had been charged.

      . Bardsley later pled guilty to simple burglary and was sentenced to serve three years at hard labor. This sentence was suspended and Bardsley was placed on two years’ probation on the condition that he serve six months in the parish jail and that he attend (under the di-rection of his probation officer) the Acadiana Mental Health Center upon his release from the parish jail.

      . This case is similar to State v. Bell, 377 So.2d 275 (La.1979). Bell had defended against an armed robbery charge by alleging that he was so drunk he did not remember what had happened. In his motion for a new trial, Bell stated that he had three witnesses who had seen him on the night of the offense and would testify that he was drunk. In rejecting this as sufficient ground to grant a new trial, the Court noted supra at 280:
      In the present case reasonable diligence on the part of the trial counsel could not be established to meet that requirement for a new trial. Defendant knew which bars he had entered early in the evening and finding the bar owners or the several patrons who were drinking with him would present no insurmountable problem. These witnesses could have been procured with the exercise of the slightest diligence.

      . The trial judge did not consider the second requirement of La.C.Cr.P. Art. 851(3), that the evidence, if presented at trial, would have changed the verdict of guilty. This second consideration only comes into play if the evidence meets the threshold requirement of being newly discovered.

      . Defendant had juvenile delinquency adjudications in 1962 and 1964, a misdemeanor conviction in 1966 for theft for value less than $20, and then in 1967 his only prior felony conviction for two counts of simple burglary, when he was probably around nineteen years old. His record shows no convictions of any sort for an eleven year period through 1977 when he had a misdemeanor conviction for hit and run and at some unspecified time thereafter, a deferred sentence and unsupervised probation for a misdemeanor conviction for simple battery.