author: SCHEB, Judge.

text:
    James Richard WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 82-1205.
    District Court of Appeal of Florida, Second District.
    July 2, 1982.
    Barry A. Cohen and Richard G. Pippinger of Cohen, Pippinger & Shibley, Tampa, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for respondent.
   SCHEB, Judge.

The State charged petitioner James Richard White with six violations of delivery of a controlled substance. On March 16, 1982, the trial judge entered an order granting a motion to dismiss the charges. The State failed to appeal this order within the fifteen-day period as provided by Florida Rule of Appellate Procedure 9.140(c)(2), but filed a motion for rehearing some twenty-eight days after the order was filed.

In its motion for rehearing, the State alleged that “[e]ven though the order was signed in open court, the undersigned assistant state attorney was not aware the order had been signed until after the fifteen (15) days in which to file an appeal on the motion to dismiss had expired.” The transcript of the hearing, however, reveals that the judge announced the signing of the order in open court. The trial judge granted the motion for rehearing and set aside the order of dismissal. The court then reentered the same order of dismissal, thereby giving the State another fifteen days to appeal. Petitioner contends the trial court lacked jurisdiction to reconsider its original order of dismissal and seeks a writ of common law certiorari.

We agree with petitioner. The motion for rehearing, even if authorized, was not timely filed and the court was without jurisdiction to vacate its dismissal order. Accordingly, we grant certiorari and remand the cause to the trial court to reinstate its original order of dismissal.

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

      . We are not here faced with an allegation that the state attorney’s office was not served with a copy of the dismissal order until after the time for appeal had expired. Thus, we do not express an opinion as to whether the doctrine of Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971), is applicable to criminal cases.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CAPITAL LINCOLN MERCURY and Shelby Mutual Insurance Co., Appellants, v. SPECIAL DISABILITY TRUST FUND, Appellee.
    No. AF-269.
    District Court of Appeal of Florida, First District.
    July 2, 1982.
    Frank J. Santry, of Field, Granger, San-try & Mitchell, P. A., Tallahassee, for appellants.
    Nancy L. Cavey, Tallahassee, for appel-lee.
   PER CURIAM.

The deputy’s order finding no merger is supported by substantial competent evidence, and accordingly, is AFFIRMED.

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


author: THOMPSON, Judge.

text:
    Enoch DICKINSON, Jr., Appellant, v. Louie WAINWRIGHT, Appellee.
    No. AI-300.
    District Court of Appeal of Florida, First District.
    July 2, 1982.

      Enoch Dickinson, Jr., pro se.
    Joe Belitzky, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

This is an appeal from an order dismissing appellant’s petition for writ of habeas corpus for failure to state a cause of action. We affirm.

Appellant, an inmate in the Florida prison system, alleges that he has been unlawfully deprived of work gain time, to which he feels that he is entitled under § 944.-275(2)(b), Fla.Stat. (1981). Appellant’s job as a laundry equipment operator in the prison is classified by the Department of Corrections (the department) as “semiskilled.” The skill level of an inmate’s job is one of the factors used by the department in calculating the amount of work gain time awarded the inmate. The appellant’s job is classified as semi-skilled, and under the department’s rules he is entitled, at most, to work gain time amounting to 75% of the days he works. See Fla.Admin.Code Rule 33-11.065. The appellant feels that because he is not getting one day of work gain time for each day he works, that he is being deprived of work gain time contrary to § 944.275(2)(b). Appellant’s argument is without merit.

Section 944.275(2)(b) does not mandate that an inmate be given one day of gain time for each and every day worked. It merely authorizes the department to award prisoners:

up to 1 day for each day of productive or institutional labor performed by any prisoner who has committed no infraction of the rules of the department or of the laws of this state and who has accomplished, in a satisfactory and acceptable manner, the work duties, and tasks assigned.

§ 944.275(2)(b), Fla.Stat. (1981). The section goes on to state that the work gain time allowance “shall be awarded on the basis of diligence of the inmate, the quality and quantity of work performed, and the skill required for performance of the work. Accordingly, an inmate is not entitled to automatically receive one day of work gain time for each and every day of work performed. It is clear from the formula used by the department in computing work gain time that all of these statutory criteria are taken into account. Furthermore, the proper classification of a particular job performed by an inmate is within the discretion of the department. Appellant has failed to prove that the department has abused it’s discretion in classifying his job as “semi-skilled” as opposed to “skilled.” We additionally note that since appellant received a disciplinary report in August 1981, he was statutorily prohibited from receiving statutory or work gain time during that month. §§ 944.275(1), .275(2)(b), Fla.Stat. (1981).

We therefore find that petitioner has not been unlawfully denied work gain time. Accordingly, the trial court properly dismissed the petition for writ of habeas corpus for failure to state a cause of action.

LARRY G. SMITH and JOANOS, JJ., concur.


text:
    Benny B. MOONEY, Appellant, v. STATE of Florida, Appellee.
    No. XX-243.
    District Court of Appeal of Florida, First District.
    July 2, 1982.
    Michael Minerva, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

In our opinion in this cause filed January 6, 1982, we followed the ruling of the Second District Court of Appeal in Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979), in ruling that the trial court erred in allowing evidence of the nature of appellant’s prior conviction for interfering with an officer with violence. On the day following release of our opinion (January 7,1982), the Florida Supreme Court released its opinion in Parker v. State, 408 So.2d 1037 (Fla.1982), disapproving Fouts to the extent that it conflicted with its opinion (in Parker) stating:

We previously held in Arrington v. State, 233 So.2d 634 (Fla.1970), that the state is not bound by the defendant’s offer to stipulate to essential elements of the crime, stating that exclusion of such relevant evidence is left to the discretion of the trial court based on traditional grounds. Section 790.23(1), Florida Statutes (1977), prohibiting the possession of a firearm by a convicted felon, makes a prior conviction an essential element of the crime. Therefore, proof of conviction is relevant, evidence and is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, or needless presentation of cumulative evidence.

The trial court apparently did not consider and we do not consider that the probative value of appellant’s prior conviction for interfering with an officer with violence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, or needless presentation of cumulative evidence in this case. We, therefore, vacate our previous ruling which reversed the trial court in part and remanded for a new trial and now affirm the conviction.

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


text:
    Florian J. STOLFI, Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 80-2291.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Rodriguez & Meroni, Greene & Cooper and Joan M. Bolotin, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Florian Stolfi appeals from a summary judgment in favor of Prudential Property and Casualty Insurance Company. The trial court held that, as a matter of law, a policy exclusion prevented recovery of uninsured motorist benefits for injury incurred while operating an employer’s vehicle. Appellant, during the course of his employment, was injured while driving a Post Office jeep. The tortfeasor was, of course, an uninsured motorist.

The law then in effect, Section 627.-727, Florida Statutes (1977), voids Prudential’s attempt to limit coverage. Johns v. Liberty Mutual Fire Insurance Company, 337 So.2d 830 (Fla. 2d DCA 1976); Cf. Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229 (Fla.1971), construing similar provisions found in Section 627.0851, Florida Statutes (1969) (repealed 1971).

Appellee’s reliance on State Farm Mutual Automobile Insurance Company v. Wimpee, 376 So.2d 20 (Fla. 2d DCA 1979) is misplaced. In that case, the injured party claiming uninsured motorist benefits had occupied a vehicle that was not insured.

Under Section 627.4132, Florida Statutes (1977), aggregation is allowed if the claimant is a named insured on one policy and an additional insured on another. South Carolina Insurance Company v. Kokay, 398 So.2d 1355 (Fla.1981). Given the facts present here, Stolfi is entitled to receive benefits under both policies. United States Fidelity & Guaranty Company v. Curry, 395 So.2d 530 (Fla.1981).

We conclude, therefore, the trial court erred in granting summary judgment for Prudential and, accordingly, reverse and remand with directions to enter judgment for appellant.

Reversed and remanded.

      . The policy of insurance issued to Stolfi for his personal vehicle provided:
      Nor will we pay for injuries suffered by anyone insured under this part if occupying or hit by a car (not covered under this part) which you don’t own if it is furnished for your regular use or for the regular use of such relatives (for example, a company car). [Emphasis in original].


text:
    Jack J. MacDOUGALL, Appellant, v. METROPOLITAN DADE COUNTY and the Miami-Dade Water and Sewer Authority, Appellees.
    No. 81-449.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Patterson & Traynham and Ben R. Patterson III, Tallahassee, for appellant.
    Robert A. Ginsburg, Dade County Atty., and Susan E. Trench, Asst. County Atty., for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Fink v. Metropolitan Dade County, 403 So.2d 1060 (Fla. 3d DCA 1981); City of Miami v. Fraternal Order of Police, 378 So.2d 20 (Fla. 3d DCA), cert, denied, 388 So.2d 1113 (Fla.1980); Koenig v. Tyler, 360 So.2d 104 (Fla. 3d DCA 1978).


author: BASKIN, Judge.

text:
    Lome CAMPBELL, Appellant, v. Mary CAMPBELL, Appellee. Laura CAMPBELL, Appellant, v. Lorne CAMPBELL, Appellee.
    Nos. 81-757, 81-760.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Jeffrey A. Schwarz, North Miami, Fla., for Lorne Campbell.
    No appearance, for Mary Campbell.
    Abramson & Butter and Stephen H. Butter, Miami, for Laura Campbell.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Pursuant to the terms of the Property Settlement Agreement approved by the court in a proceeding to dissolve the Camp-bells’ marriage, the trial court ordered Lorne Campbell to pay for daughter Laura’s college education. A subsequent lawsuit, in which the husband sought to set aside the Property Settlement Agreement, resulted in a final judgment against the daughter. In effect, the court required the daughter to return the funds which she had received for her college education but had failed to use for that purpose. We affirm the final judgment upon our finding that the issues were properly before the trial court.

Affirmed.


text:
    Emilio Alfonso VERA and Allied Fidelity Insurance Company, an Indiana corporation, Appellants, v. STATE of Florida, for the Use and Benefit of DADE COUNTY, Appellee.
    No. 81-1654.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Carl H. Lida, Miami, for appellants.
    Robert A. Ginsburg, County Atty., and James A. Jurkowski, Asst. County Atty., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Allied Fidelity Insurance Co. v. State, 415 So.2d 109 (Fla. 3d DCA 1982).


text:
    AMERIFIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI, a United States corporation, Appellant, v. CENTURY 21 COMMODORE PLAZA, INC., a Florida corporation, formerly known as Saul J. Morgan Enterprises, Inc., a Florida corporation, et al., Appellees.
    No. 81-2017.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart and James E. Tribble and J. Frost Walker, III, Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and William C. Hearon, and Gerald F. Richman, Miami, for appellees.
    Before HENDRY and DANIEL S. PEARSON, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge.
   PER CURIAM.

The trial court’s final summary judgment in favor of Century 21 Commodore Plaza, Inc., finding

“1. Following institution of this action involving a mortgage upon which a defendant had been making payments for more than ten years, the Plaintiff affirmatively sought from Defendants payments on the mortgage in question for the months of December, 1979 through March, 1980, including all outstanding and allegedly defaulted amounts with interest thereon.
“2. All such payments sought by the Plaintiff following the institution of this suit were received and accepted by the Plaintiff.
“3. On March 19, 1980, following a request by Plaintiff, the March payment under the mortgage, including interest and principal in a total amount of $9,535.00, was accepted without any qualification whatsoever by the Plaintiff. Plaintiff did not in any way seek to qualify said payment until weeks after its receipt and unqualified acceptance.
“4. Plaintiff has continued to accept subsequent payments of principal and interest through and including the present time, although Plaintiff now maintains that such acceptance is intended to be without waiver of its right to acceleration.
“5. To allow the Plaintiff the right to foreclosure and accelerate the mortgage after the unqualified acceptance of the March, 1980 installment which essentially brought principal and interest current under the terms of the mortgage would be inequitable, would result in the unjust enrichment of the Plaintiff, and would constitute an unconscionable forfeiture. See, e.g., Groner-Youngerman v. [Denison] Dennison, 117 So.2d 210 (Fla. 2 DCA 1959); Kreiss Potassium Phosphate Co. v. Knight, [98 Fla. 1004] 124 So. 75, 756 [sic] (Fla.1929).”

is affirmed.

It is axiomatic that a court of equity may refuse to foreclose a mortgage when an acceleration of the due date makes acceleration unconscionable and foreclosure inequitable and unjust. River Holding Company v. Nickel, 62 So.2d 702 (Fla.1952); Northside Bank of Miami v. La Melle, 380 So.2d 1322 (Fla. 3d DCA 1980); Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970); Althouse v. Kenney, 182 So.2d 270 (Fla. 2d DCA 1966). While neither mere delay on the part of the mortgagee in exercising its right to accelerate, see Kreiss Potassium Phosphate Company v. Knight, 98 Fla. 1004, 124 So. 751 (1929), nor the mortgagor’s willingness to cure a default after an election to accelerate has been made, Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970), nor tender of amounts due after such an election, see Kreiss Potassium Phosphate Company v. Knight, supra; New England Mutual Life Insurance Company v. Luxury Homebuilders, Inc., 311 So.2d 160 (Fla. 3d DCA 1975), is a ground for depriving a mortgagee of its contractual right of acceleration and foreclosure, the request to and acceptance from the mortgagor of substantially all amounts due under the mortgage, as here, is such conduct on the part of the mortgagee which will justify a court of equity in refusing to foreclose a mortgage, notwithstanding that the conduct comes after an election to accelerate has been made and despite the conceded but immaterial fact that the mortgagee never explicitly waived its election to accelerate. The evidence before the trial court indisputably supported Century 21’s affirmative defense of unconscionability, making summary judgment proper. Northside Bank of Miami v. La Melle, supra.

Affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Charles BARROWCLOUGH, Appellee.
    No. 81-2336.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    Lawrence & Daniels and Adam H. Lawrence, Miami, for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

We affirm the trial court’s order suppressing certain evidence obtained by the police as a result of a concededly unauthorized invasion of Barrowclough’s residence upon a holding that (1) an individual, as Barrowclough, who lawfully possesses or controls the premises searched has an expectation of privacy in the premises, Man- cusí v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), even though he is absent from the premises when the search occurs, see Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); (2) this legitimate expectation of privacy in the premises does not evaporate merely because the right to exclude others, the very heart of any legitimate expectation of privacy in premises, Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Norman v. State, 379 So.2d 643 (Fla.1980), is a shared right, Mancusi v. DeForte, supra; State v. Parker, 399 So.2d 24 (Fla. 3d DCA 1981); Steeber v. United States, 198 F.2d 615 (10th Cir. 1952); United States v. Gomez, 495 F.Supp. 992 (S.D.N.Y.1979), aff’d on other grounds, 633 F.2d 999 (2d Cir. 1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1695, 68 L.Ed.2d 194 (1981); and (3) therefore, the fact that Bar-rowclough left his residence for a twenty-four-hour period in the control of another person does not mean, as the State solely contends, that Barrowclough relinquished his legitimate expectation of privacy with regard to his residence, notwithstanding that the person in control could and did allow others to enter the premises, since, as the State admits, no such permission to enter was given by anyone to the police.

Affirmed.

      . In this respect, we disapprove of the statement in Coster v. State, 392 So.2d 16 (Fla. 3d DCA 1980), that “even though there was evidence that [Coster] owned the house” and occupied the house searched, he was required by United States v. Salvucci, 4-48 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), to otherwise establish an expectation of privacy in the premises. As Judge Schwartz’s dissenting opinion in Coster notes, Salvucci has not the slightest thing to do with a homeowner’s expectation of privacy.

      . As the Supreme Court noted in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), Jones not only had permission to use the apartment of his friend, but had a key to the apartment with which he admitted himself on the day of the search and kept possessions in the apartment. Except with respect to his friend, Jones had complete dominion and control over the apartment and could exclude others from it.
      “Jones on its facts merely stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place.” Id. at 141^2, 99 S.Ct. at 429-30.
      This aspect of Jones v. United States is totally unaffected by the overruling in Salvucci of Jones’ separate automatic standing rule.

      . As one commentator has noted, the very contention made by the State here would produce “the bizarre result that if the facts would support a third party consent, then, even when no such consent has been given at all ..., the defendant lacks standing to object to a Fourth Amendment violation into the privacy of his personal effects.” 3 W. LaFave, Search & Seizure § 11.3(f) (1978 & Supp.1980).


text:
    Vincent CILIBERTI, Appellant, v. Conchita CILIBERTI and Dade Savings & Loan Association, Appellees.
    No. 81-2386.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.

      Prunty, Ross, Olsen & Israel and William Bruce Israel, Miami, for appellant.
    Barranco & Kellough and Peter H. Kircher and Steven Kellough, Miami, for appel-lees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Appellant husband filed a post-dissolution complaint in which he alleged that his former wife had fraudulently converted money market certificates. The wife sought and obtained dismissal of the complaint by asserting, in a motion to dismiss, affirmative defenses of estoppel, fraud, release, res ju-dicata, and waiver.

We reverse upon our holding that the husband’s claim was based upon conduct of which he had no knowledge at the time he executed the general release approved by the court in the dissolution proceeding. The release could not include a claim which had not matured at the time of its execution. Sottiie v. Gaines Construction Co., 281 So.2d 558 (Fla. 3d DCA 1973), cert. denied, 289 So.2d 737 (Fla.1974). In addition, the court erred in considering as the basis for dismissal affirmative defenses which did not appear on the face of the pleadings. Pizzi v. Central Bank & Trust Co., 250 So.2d 895 (Fla.1971); Stern v. First National Bank of South Miami, 275 So.2d 58 (Fla. 3d DCA 1973); Fla.R.Civ.P. 1.110.

Reversed and remanded for further proceedings.


text:
    Carl CYRUS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2649.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Defendant Carl Cyrus appeals the summary denial of his motion to vacate, set aside or correct the portion of his sentence which required him to serve a mandatory minimum of three years incarceration prior to becoming eligible for parole. We agree that the three-year mandatory minimum exceeded the mandatory minimum authorized by the Youthful Offender Act, section 958.05, Florida Statutes (1981); Whitlock v. State, 404 So.2d 795 (Fla. 3d DCA 1981). We, therefore, reverse the summary denial of defendant’s motion and remand for correction of the sentence in accordance with the one-year mandatory minimum provided by law.

      . We note that the trial court did not have the benefit of the decision in Whitlock at the time of sentencing.


text:
    Elmer G. GREEN, Appellant, v. HARTLEY REALTY CORP., and Algo Realty Inc., Appellee.
    No. 82-748.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Jones & Foster and Kevin D. Wilkinson, West Palm Beach, for appellant.
    Cohen & Rigovin and Terrence S. Schwartz, North Miami, Holland & Knight and R. Thomas Farrar, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The trial court was required to resolve factual conflicts in deciding whether there was an understanding (between parties to an oral agreement for sales commissions) as to place of payment so as to fix venue in an action for breach of contract. Those conclusions will not be set aside on review because appellant has failed to make a clear showing that they are totally unsupported by substantial record evidence. Oceanic International Corp. v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981); Pryor v. Pryor, 274 So.2d 242 (Fla. 1st DCA 1973); Griffith Services, Inc. v. Walter Kidde Constructors, Inc., 262 So.2d 240 (Fla. 1st DCA 1972); Mogee v. Haller, 222 So.2d 468 (Fla. 1st DCA 1969).

Affirmed.


text:
    Willie James DENNIS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1230.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Willie James Dennis, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Oscar ROSARIO, Appellant, v. STATE of Florida, Appellee.
    No. 82-1301.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Oscar Rosario, in pro. per.
    Jim Smith, Atty. Gen., for appellee.

      Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Marguerite V. CAMPBELL, Appellant, v. Lloyd MACK and American Fire & Casualty Company, a foreign corporation, Appellees.
    No. 81-1169.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.
    Beverly & Freeman and Larry Klein, West Palm Beach, for appellant.
    Charles H. Damsel, Jr., and Marjorie Gar-darian Graham of Jones & Foster, P.A., West Palm Beach, for appellees.
   PER CURIAM.

We believe the trial court properly concluded that the appellee, Lloyd Mack, was not an insured under the provisions of the policy issued by appellee, American Fire & Casualty Company. Cf. Travelers Insurance Company v. Bartoszewicz, 404 So.2d 1053 (Fla.1981).

AFFIRMED.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


text:
    Maurice Keith ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 81-2299.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

A police officer testified at appellant’s trial that he placed appellant’s photograph in a photographic display for viewing by the alleged victim only after receiving certain undisclosed information from an undisclosed source. The victim then selected appellant’s photograph from the display. We believe the officer’s testimony constituted improper hearsay. Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981); Molina v. State, 406 So.2d 57 (Fla. 3d DCA 1981). However we do not find a sufficient objection by appellant to preserve this error for appeal. Accordingly, we affirm.

AFFIRMED.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


text:
    Beverly JONES, Appellant, v. ILLINOIS EMPLOYERS INSURANCE OF WASAU, Larry D. Harrell and United States Fidelity and Guaranty Insurance Company, a foreign corporation, Appellee.
    No. 81-1836.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.
    Lawrence J. Bohannon of Chidnese & Bo-hannon, Fort Lauderdale, for appellant.
    Pyszka & Kessler, Fort Lauderdale, and Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellee-Illinois Employers Ins. of Wasau.
   PER CURIAM.

AFFIRMED. Del Prado v. Liberty Mut. Ins. Co., 400 So.2d 115 (Fla. 4th DCA 1981), pet. for rev. dism. 407 So.2d 1105.

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


text:
    Bobby KNIGHT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-1961.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The judgment appealed from is affirmed in all respects except as to the assessment of costs. The assessment of costs is vacated.

AFFIRMED AS MODIFIED.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


text:
    David W. PRESSLER, Appellant, v. COMMUNITY HOSPITAL OF the PALM BEACHES, INC., Appellee.
    No. 81-2040.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.
    David W. Pressler, pro se.
    Louie W. Strum, III, of Walton, Lantaff, Sehroeder & Carson, West Palm Beach, for appellee.
   PER CURIAM.

This matter is treated as a Petition for Writ of Certiorari pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B) and is hereby denied.

GLICKSTEIN, DELL, and WALDEN, JJ., concur.


text:
    Dennis Richard COOKISH, Appellant, v. STATE of Florida, Appellee.
    No. 82-910.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.
    Dennis Richard Cookish, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant filed a motion for post-conviction relief pursuant to Rule 3.850, Fla.R. Crim.P., and alleged that his plea had been coerced. The trial court denied the motion without an evidentiary hearing and without appending a portion of the record to justify its action. This court, in turn, relinquished jurisdiction and instructed the trial court “to grant an evidentiary hearing or, in the alternative, to supplement the record on appeal by filing a portion of the record which conclusively shows that the prisoner is entitled to no relief.” See Rule 3.850, Fla.R.Crim.P.

Thereafter, the trial court entered a second order which again denied appellant’s motion without an evidentiary hearing and without appending a portion of the record. In deference to the trial court, it appears that the court was under the impression that the record of the plea conference was lodged in this court because of an earlier appeal. In fact, however, the record had been returned to the clerk of the circuit court long before the entry of the trial court’s second order. Additionally, in its second order, the trial court suggested “that the Clerk, or the Assistant Attorney General supply the [appellate] court with a copy of the plea dialogue... . ” With due respect to the trial court, the foregoing fails to satisfy the requirements of this court’s order and constitutes an impermissible delegation of the trial court’s responsibility. Thus, we are compelled to reverse.

We recognize that compliance with Rule 3.850 can, at times, be an onerous task for the trial court. Indeed, we acknowledged this point in Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980), where we said:

The committee note reflects the effect of the rule in creating additional work for the already heavily burdened trial bench. Despite this, we believe observance of the committee’s recommendations is advisable and would have the effect of shortening the inevitable appellate proceedings in the long run.

Id., at 738; see also LeDuc v. State, 415 So.2d 721 (Fla.1982). Nonetheless, the rule’s requirements are clear; they demand no less than diligent and full compliance.

Since the order on appeal fails to comport with the requirements of Rule 3.850, Fla.R. Crim.P., we are compelled to reverse and mandate the trial court to comply strictly with our order of May 14, 1982. A petition for rehearing will not be entertained.

REVERSED and REMANDED.

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


text:
    Elsie M. MILLER, Appellant, v. SUN BANK/SUNCOAST, etc., Appellee.
    No. 81-2122.
    District Court of Appeal of Florida, Second District.
    July 7, 1982.
    John T. Blakely of Johnson, Blakely, Pope, Bokor & Ruppel, P. A., Clearwater, for appellant.
    George F. Wilsey of Fisher & Wilsey, St. Petersburg, for appellee.
   PER CURIAM.

The only meritorious point raised by appellant is that the trial court erred by granting a final summary judgment in this mortgage foreclosure without requiring ap-pellee to file in evidence appellant’s note. We affirm the judgment of the trial court; however, prior to any order of sale, appellee shall file in evidence in this case appellant’s original promissory note. See Telephone Utility Terminal Co. v. EMC Industries, Inc., 404 So.2d 183 (Fla. 5th DCA 1981).

OTT, C. J., and SCHEB and SCHOON-OVER, JJ., concur.


author: CAMPBELL, Judge.

text:
    James L. SPONHEIM, Appellant, v. STATE of Florida, Appellee.
    No. 81-2504.
    District Court of Appeal of Florida, Second District.
    July 7, 1982.

      Jack D. Hoogewind, Ridge Manor, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

The state charged appellant in a two-count information with kidnapping and extortion with a firearm. At the charge conference the trial judge indicated that he would charge on extortion and attempted extortion. Defense counsel did not object. The jury acquitted appellant of the kidnapping charge and found him guilty of attempted extortion.

Attempted extortion is a nonexistent crime, though an attempt is embraced within the crime of extortion as defined by section 836.05, Florida Statutes (1981). We, therefore, reverse the conviction for attempted extortion. Appellant, however, is not entitled to discharge but may be retried for the offense of extortion. Achin v. State, No. 59,840 (Fla. Jan. 21, 1982); Jordan v. State, 415 So.2d 1161 (Fla. 2d DCA1982). Even though in Achin the defendant had requested the instruction on attempted extortion and thus invited the error, we find that to be an insufficient distinction from the case sub judice where defense counsel remained silent in the face of the court’s announcement that it would charge on attempted extortion. Our supreme court in Achin appears to premise its holding not so much on the fact that defense counsel invited the error but “because defendant was convicted of a crime which, although technically nonexistent, was in all elements equal to the main offense,” and, therefore, “the double jeopardy provision of the fifth amendment does not bar defendant’s reprosecution.” Achin v. State, No. 59,840, slip op. at 4 (Fla. Jan. 21, 1982).

We, therefore, REVERSE and REMAND for retrial.

OTT, C. J., and SCHOONOVER, J., concur.


author:
DIXON, Chief Justice . MARCUS, Justice
      BLANCHE, Justice FRED C. SEXTON, Justice Ad Hoc,

text:
    STATE of Louisiana v. Arthur P. BERNDT.
    No. 81-KA-1494.
    Supreme Court of Louisiana.
    June 21, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Harold J. Gilbert, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Numa Bertel, Dwight Doskey and M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   DIXON, Chief Justice .

Arthur F. Berndt pleaded guilty to the crime of distribution of hydromorphine, more commonly known as dilaudid, in violation of R.S. 40:967. The court sentenced defendant to thirty years with credit for time served. Sentence was suspended on condition that defendant complete the Odyssey House drug rehabilitation program, and he was also placed on five years active probation. The state filed a multiple bill charging Berndt as a fourth offender under R.S. 15:529.1. Defendant’s previous crimes were state convictions for forgery and simple burglary and a federal conviction for possession of a stolen welfare check. The trial court ruled defendant a fourth offender and vacated his original sentence. The court then imposed the same sentence of thirty years at hard labor with the jail sentence suspended, five years active probation and the special condition that he successfully complete the Odyssey House program. Since defendant was currently subject to a federal sentence the trial court ruled that the sentence in this case should run concurrently with the federal sentence. After a status hearing on July 27, 1978 the trial court ordered defendant remanded to the custody of federal authorities with a detainer placed on him for this case so that he could begin his probationary period in the Odyssey House program when the federal sentence had been served.

On June 3, 1980 defendant was on active probation and was charged with the crime of being a convicted felon in possession of a firearm, a violation of R.S. 14:95.1. After he pleaded guilty to the charge, the court sentenced defendant to serve three years without benefit of probation, parole or suspension of sentence. On June 18, 1980, pursuant to the state’s rule to show cause why defendant’s probation should not be revoked, the trial court revoked defendant’s probation and ordered him to serve the multiple offender sentence of thirty years at hard labor with credit for time served.

On September 17,1980 defendant filed an application for a writ of habeas corpus alleging that the revocation of his probation stemmed from multiple bill sentencing based on four convictions in which he had pleaded guilty but had not been properly Boykinized. The trial court ruled that defendant had not been properly Boykinized when he pleaded guilty in 1973 to a simple burglary charge, thereby preventing its use to enhance defendant’s sentence. The court then vacated the thirty year sentence and resentenced defendant as a triple offender under R.S. 15:529.1. Defendant was ordered to serve twenty years at hard labor with credit for time served, to run concurrently with the three year sentence for firearm possession.

Defendant objected to the court’s ruling and now appeals the designation as a triple offender to this court. Although lodged as an appeal, this case is in the nature of an application for supervisory writs to review the ruling by the trial court denying defendant habeas corpus relief following the revocation of his probation. Pursuant to Louisiana Supreme Court Rule 1(11) we treat the appeal as an application for supervisory writs and determine the merits accordingly.

Defendant was sentenced as a triple offender based on guilty pleas entered in 1968 for forgery, a violation of R.S. 14:72, in 1978 for distribution of hydromorphine, a violation of R.S. 40:967 and in 1973 for possession of stolen mail, a violation of 18 U.S.C. § 1708. Defendant claims that since he was not properly Boykinized in any of the three guilty pleas for the above convictions, they are defective for R.S. 15:529.1 multiple bill purposes. State v. Nelson, 379 So.2d 1072 (La.1980). Defendant argues he was not advised that by pleading guilty he was relinquishing his rights to a jury trial and to confront his witnesses, as well as his privilege against self-incrimination as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and State v. Nelson, supra. In addition, defendant maintains that the 1973 guilty plea in federal court cannot be used to enhance his sentence in a Louisiana court since, if the crime were committed in Louisiana, it would not be a felony. He relies on 15:529.1 A which provides:

“Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:

With regard to the constitutional sufficiency of the pleas, the state correctly points out that defendant’s 1968 guilty plea was before Boykin. According to this court’s decision in State v. Holden, 375 So.2d 1372 (La.1979), the state is only required to prove, in guilty pleas entered before December 8, 1971, that defendant pleaded with representation by counsel. If defendant was represented by counsel then he is precluded from making a collateral attack beyond the colloquy on the guilty pleas in the enhancement penalty proceedings. Holden, supra at 1376. Since defendant admitted that he had an attorney for his guilty plea in 1968, this plea is not defective and was properly used to enhance defendant’s sentence.

The state correctly noted that the 1978 plea was entered with the proper precautions required by Boykin. Evidence that defendant was advised that he was waiving the three constitutional rights by pleading guilty, as required in Boykin, appears in the record. Thus, the guilty plea in 1978 was properly used to enhance defendant’s sentence.

On August 7, 1973 in the United States District Court for the Eastern District of Louisiana defendant pleaded guilty to the crime of possession of stolen mail. The court sentenced him to serve forty-two months in prison. The mail was a welfare check in the amount of $17.00. Defendant claims this crime would be a misdemeanor of receiving stolen things in Louisiana, a violation of R.S. 14:6o. Since misdemeanors cannot be used in a multiple bill to enhance defendant’s sentence, the 1973 federal conviction was improperly used to sentence defendant as a third offender. In response to defendant’s argument that the federal conviction would be a misdemeanor under Louisiana statutes, the state claims the analogy is untenable. Since the offense was possession of stolen mail as defined by 18 U.S.C. § 1708 and not the possession of stolen goods, a more suitable comparison would be to burglary, which is a felony under R.S. 14:60 — 62.2.

The federal conviction was classified as a felony under 18 U.S.C. § l. However, it appears that in Louisiana it would have been a misdemeanor. In State v. Jones, 408 So.2d 1285 (La.1982), this court classified the federal charge of possession of stolen mail as possession of stolen goods, a violation of R.S. 14:69. In Jones we held the offense of possession of stolen mail to be a felony in Louisiana since the amount of the check was in excess of $100. In Jones two Family Services checks were involved, one in the amount of $140 and another for $153.40. The amount of the welfare check in defendant’s possession in this case was $17.00; under R.S. 14:69 the offense is a misdemeanor.

Therefore, the 1973 federal conviction cannot be used for enhancement purposes under R.S. 15:529.1, and defendant should not have been sentenced as a triple offender. For these reasons, defendant’s sentence as a third offender under 15:529.1 is vacated, and the case is remanded so that defendant may be resentenced as a second offender.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and will assign reasons.

SEXTON, J. ad hoc, dissents with reasons.

MARCUS, Justice

(dissenting).

La.R.S. 15:529.1 A provides enhanced punishment for any person who, “after having been convicted under the laws ... of the United States ... of a crime which, if committed in this state would be a felony,” is subsequently convicted of a felony within this state. Under this statute, it is the nature of the federal offense which is first looked to in determining whether the offense would be a felony in Louisiana. If there is a similar Louisiana offense, then Louisiana’s classification of the offense determines whether the federal conviction was a felony conviction. If there is no similar Louisiana offense, then an offense which is a felony under federal law as a result of the penalty is considered a felony in Louisiana for enhancement purposes. In the instant case, 18 U.S.C. § 1708 provides a penalty for stealing, taking, embezzling or abstracting any mail as well as for buying, receiving, concealing or possessing any mail so stolen, taken, embezzled or abstracted. The penalty for all of these offenses is the same. The value of the mail is of no moment. Hence, the nature of the offense is tampering with the mail. Accordingly, I do not consider the federal offense of possessing stolen mail to be similar to the Louisiana offense of receiving stolen things. To the extent that State v. Jones, 408 So.2d 1285 (La.1982) is inconsistent with this view, I would overrule it. Since the penalty for possession stolen mail is imprisonment for not more than five years or a fine of not more than $2,000, the offense is classified as a felony under federal law. 18 U.S.C. § 1. Hence, the federal crime, if committed in this state, would be a felony and, therefore, the federal conviction can be used for enhancement purposes under La. R.S. 15:529.1 A. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

The federal guilty plea to possession of stolen mail (a welfare check in the amount of $17.00) is a serious federal offense, the penalty provisions of which impose a fine of $2000 or imprisonment up to five years, or both. The amount of the check in the stolen mail has no bearing on the gravity of the offense. It is the taking or receiving or possession of the stolen mail which is the gravamen of the offense. We have no comparable offense and, for that reason, we should look to the penalty imposed by the federal statute.

I agree with the dissent of Sexton, J., Ad Hoc that the approach in Ralph is consistent with the intent of the multiple offender law.

FRED C. SEXTON, Justice Ad Hoc,

dissenting.

I respectfully dissent. The majority opinion relies on State v. Jones, 408 So.2d 1285 (La.1982), for the proposition that in a multiple offender proceeding involving a federal conviction, where Louisiana does not have the same offense, the court will look to the act itself (rather than define the offense by the penalty) to determine if Louisiana has an offense which encompasses the actions of the defendant. In so doing State v. Ralph, 336 So.2d 836 (La.1976), is specifically overruled. I believe Jones simply overlooked Ralph. Note that the result in Jones would be the same under either theory.

In my view, Ralph is the better law. The United States is our superior jurisdiction. We have no counterpart for many federal offenses such kind as Dyer Act violations and mail offenses which are considered serious transgressions against the peace and dignity of the United States for good reason. The purpose of our multiple offender law is to penalize a defendant more severely for repeated serious transgressions. The approach in Ralph is consistent with the intent of this law. (It is not inconsistent, in my view, with State v. Singleton, 352 So.2d 191 (La.1977), which holds that if. Louisiana defines the same crime as the federal offense as a misdemeanor that our treatment of the offense is controlling for multiple offender purposes.)

       Judges William Norris, III and Fred C. Sexton, Jr. of the Court of Appeal, Second Circuit, and Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . R.S. 14:69 provides in pertinent part:
      “Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
      Whoever commits the crime of receiving stolen things, when the value of the things is five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
      When the value of the stolen things amounts to one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both. When the value of the stolen things amounts to less than one hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of receiving stolen things two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than one thousand dollars, or both.

      . 18 U.S.C. § 1708 states the following:
      “Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or
      Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter, or Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted—
      Shall be fined not more than $2,000 or imprisoned not more than five years, or both.”

      .18 U.S.C. § 1 provides:
      “Notwithstanding any Act of Congress to the contrary:
      (1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony.
      (2) Any other offense is a misdemeanor.
      (3) Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense.”

      . In State v. Ralph, 336 So.2d 836 (La. 1976), by Dixon, J., we allowed the use of a Dyer Act conviction (18 U.S.C. § 2312) in finding the defendant a multiple offender under R.S. 15:529.1. In the discussion, we erroneously interpreted State v. Brown, 185 La. 855, 171 So. 55 (1936), to stand for the proposition that we would look “at the penalty provision of the crime and not the crime itself’ (State v. Ralph, supra, at 840) to determine whether the conviction in another jurisdiction could be used in a multiple offender proceeding in Louisiana. State v. Brown, supra, did not stand for such a proposition. There, a Texas offense, called “felony theft,” defined as the theft of property of the value of $50.00 or more, was punishable by not less than two years in the penitentiary and would have been a felony if committed in this state (where the theft of property valued at $50.00 was punishable with or without hard labor for not more than two years). The court said at 185 La. 859, 171 So. 56:
      “. . . So it is clear that if the defendant had committed in this State the crime known in Texas as ‘felony theft’ he could, on conviction, have been sentenced to hard labor in the State Penitentiary for a term not exceeding two years.”
      Insofar as State v. Ralph, supra, is contrary to this opinion, it is overruled. See also State v. Singleton, 352 So.2d 191 (La.1977).


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Leroy ELSBY.
    No. 81-KA-0471.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph Roy, Asst. Dist. Atty., for plaintiff-appellee.
    Bonnie Jackson, M. Michele Fournet, Asst. Public Defenders, Baton Rouge, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of perjury and a sentence to pay a $750 fine. R.S. 14:123. The sole issue is whether the evidence was sufficient to support the conviction.

In February, 1978, defendant sustained gunshot wounds. Several days later he gave a recorded statement to the police, implicating two brothers, Ray and John Lo-vett, in the shooting.

No arrests were made or charges filed until January, 1979, when John Lovett was arrested on unrelated charges. When a computer check revealed Lovett’s prior involvement in the shooting of defendant, the police again questioned defendant. Defendant stated that although Lovett had shot him, he did not wish to pursue the charges, because Lovett had apologized for the incident.

Lovett was nevertheless charged with attempted murder of defendant. At an April, 1979 preliminary examination, defendant was called as a witness. When asked who had shot him, defendant replied, “I don’t know.” The prosecutor then reminded defendant he was under oath and inquired about defendant’s earlier statement to the police. Defendant testified that he told the police what people who visited him in the hospital told him about the shooting.

The hearing was abruptly terminated. Shortly thereafter, the state filed the present charge of perjury against defendant.

R.S. 14:123 defines the crime of perjury. Under R.S. 14:124, the state may prove that perjury was committed by showing that a person made contradictory or inconsistent statements in the same or separate proceedings without the necessity of proving which of the statements is false. However, for R.S. 14:124 to apply, both statements must be made under oath or affirmation.

In the present case, only defendant’s last statement was made under oath. Therefore, the state was required to prove beyond a reasonable doubt that the defendant knowingly made a false statement at the preliminary examination. It was not sufficient to show merely that the statement under oath was inconsistent with his prior unsworn statements to police.

The only items of evidence which tended to establish the falsity of defendant’s preliminary hearing statement (“I don’t know”) were his earlier inconsistent statements to police, in which defendant first identified Lovett as one of his assailants and later expressed a desire not to prosecute Lovett. No additional corroborating evidence was offered to show that defendant’s statements naming Lovett were in fact truthful or that defendant had any first-hand knowledge of the identity of his assailants. Without more than the mere proof of oral assertions which were inconsistent with the preliminary hearing testimony, the state has not proved beyond a reasonable doubt that the under-oath statement was false. See United States v. Goldberg, 290 F.2d 729 (2nd Cir. 1961).

Under the facts presented, the state’s evidence does not exclude the reasonable possibility that defendant’s initial statement to police professing first-hand knowledge of the identity of his assailant was inaccurate and that defendant, when placed under oath (and sworn to tell the truth subject to prosecution for perjury), truthfully revealed his lack of first-hand knowledge by admitting that he really did not know who shot him.

Although this court is aware of the state’s problem in dealing with the “turncoat witness”, we cannot jurisprudentially expand the “inconsistent statement” provision of R.S. 14:124 to govern situations (like the present) when one of the inconsistent statements is not under oath. If the state intends to prosecute for perjury in such cases, corroboration beyond the mere proof of defendant’s unsworn contrary assertions must be offered.

When viewed in a light most favorable to the state, the evidence is insufficient to sustain the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); See Burks v. United States, 431 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

Accordingly, defendant’s conviction and sentence are reversed, and defendant is discharged.

      . Defendant was then in parish prison on traffic charges.

      . R.S. 14:123 provides:
      “Perjury is the intentional making of a false written or oral statement in, or for use in, a judicial proceeding, or any proceeding before a board or official, wherein such board or official is authorized to take testimony. In order to constitute perjury the false statement must be made under sanction of an oath or an equivalent affirmation, and must relate to matter material to the issue or question in controversy.
      “It is a necessary element of the offense that the accused knew the statement to be false; but an unqualified statement of that which one does not know or definitely believe to be true is equivalent to a statement of that which he knows to be false.”

      .It is also necessary to show that each statement was material to the issue in controversy in the particular proceeding.

      . In Goldberg, above, the Court stated:
      “The relevancy of defendant’s prior or subsequent statement of fact contrary to his testimonial assertion is that, in the absence of evidence of a change in defendant’s knowledge, the jury may permissibly infer that one or the other utterance did not reflect defendant’s belief at the time it was made. The difficulty is that, without more, there is no more reason for thinking the admission to have been true and the testimony false than the reverse. This reason underlies the holdings that a perjury conviction may not be had solely on the basis of oral admissions contrary to the alleged perjurious statement, even if several witnesses testify to the admissions.” 290 F.2d at 733-34.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Lewis WEINSTEIN.
    No. 81-B-0914.
    Supreme Court of Louisiana.
    June 21, 1982.

      Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, Alfred S. Landry, New Iberia, Phillippi P. St. Pee, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Jr., Natchitoches, Thomas 0. Collins, Jr., New Orleans, for relator.
    John R. Martzell, New Orleans, Malcolm W. Feist, Shreveport, for respondents.
   DISCIPLINARY PROCEEDINGS

LEMMON, Justice.

This is a disciplinary proceeding instituted by the Louisiana State Bar Association through its Committee on Professional Responsibility. The Committee’s petition is based upon respondent’s conviction in federal court of aiding and abetting in making false statements to the United States Department of Housing and Urban Development in violation of 18 U.S.C. §§ 1012 and 2 (1976).

After a hearing, the Commissioner appointed by this court filed his report, in which he stated his findings of fact and conclusions of law, and recommended an official public reprimand as appropriate disciplinary action. The Committee filed a concurrence with the Commissioner’s findings of fact and conclusions of law, but did not concur in the Commissioner’s recommendation as to the extent of discipline. In its brief, the Committee recommended that respondent be suspended from the practice of law for a period of up to six months.

The record of the disciplinary proceedings establishes that respondent, between 1970 and 1972, was closing loans for Graves Construction Company, Inc. At one time respondent had owned stock in the corporation, but had sold the stock prior to the events in question.

Glenn Graves, president of the corporation, was having difficulty competing in the Shreveport market with the construction and sale of homes under the Federal Assistance Act, known as Act 235 houses. Graves and respondent learned that other construction companies were waiving many of the requirements for a prospective purchaser’s qualification for the Act 235 houses, particularly the requirement of a $200 down payment. On Graves’ behalf, respondent and another notary secured affidavits of 5,275 purchasers of Act 235 houses from other builders in the Shreveport area, in which the affiants stated they were not required to make down payments.

Graves and respondent then went to the director of the Federal Housing Authority in Shreveport and asked that the practice of waiving the requirement of a down payment be stopped. According to respondent, the director indicated that he was authorized to waive any and all requirements, including that of a $200 down payment, and exhibited a letter of authority.

Respondent also determined that many other attorneys in the area had handled similar closings in which no down payment was made. As a consequence, Graves Construction began selling Act 235 houses without requiring the $200 down payment. In each transaction, respondent prepared the note, deed and mortgage, and he disbursed the funds, while Graves provided a form letter indicating that a $200 down payment had been made. While respondent did not prepare or sign the form letters, he included them in the closing package, knowing that the down payment indicated in the form letter had not in fact been made.

Respondent, along with Graves and the corporation, were ultimately charged in a 42-count felony indictment resulting from these closing practices. The federal district judge initially dismissed the indictment, finding government misconduct and entrapment. On appeal, that dismissal was reversed, the court holding that the issues of entrapment and governmental misconduct were questions of fact for the jury.

Faced with the possibility of an unfavorable jury decision on the 42-count felony indictment on charges of making false statements, respondent through his attorney negotiated a plea bargain, in which he pleaded guilty to four misdemeanor counts of aiding and abetting in making false statements. Respondent was sentenced to six months imprisonment on each count to run concurrently, with confinement suspended, and was additionally placed on supervised probation for three years and fined $1,000 on each count. Petitioner paid the fine immediately, and he subsequently completed the probationary period successfully.

After hearing the above evidence, the Commissioner found that respondent had knowingly provided false information, despite his claim that he was authorized to waive the requirement of the down payment by the area director of F.H.A. Noting that respondent did not directly profit from the misstatements and that the primary benefit was to his client, Graves Construction, the Commissioner concluded that respondent did not knowingly attempt to defraud anyone and that the charges stemmed from poor judgment, rather than from criminal intent.

Nevertheless, finding that respondent had violated the duty of an attorney to uphold the integrity of the profession and to avoid even the appearance of impropriety, the Commissioner concluded that the conduct warranted discipline. However, because respondent had already been severely punished and because the facts of the case were exceptional, the Commissioner did not recommend disbarment or suspension. Taking cognizance of the amount of time that has elapsed since the incidents, of the harshness of the original indictment and the vast difference between the indictment and the plea finally accepted, of the time and expense incurred in defending the federal charges, and of respondent’s lack of criminal intent, the Commissioner recommended an official public reprimand as appropriate discipline.

We agree that an official public reprimand, rather than suspension or disbarment, is the appropriate disciplinary action in this case. The practice of using false statements about the down payment in closing packages for Act 235 houses not only was widespread in the Shreveport area, but also was knowingly tolerated, if not encouraged, by the F.H.A. area director. The fact that the practice was widespread in the legal community and may have been induced by the governmental agency does not excuse respondent’s behavior, but certainly should be weighed heavily in determining the appropriate disciplinary action against him.

Moreover, numerous business and professional persons, as well as clergy members, enthusiastically endorsed respondent when he was up for sentencing in federal court. The fact that the federal district judge, who was entirely familiar with the matter, saw fit not to impose confinement is another factor favoring respondent. Additionally, despite the notoriety over an extensive period of time, respondent’s clients have continued to entrust him with large sums of money in his notarial practice.

The purpose of disciplinary proceedings is to insure that attorneys maintain appropriate standards of professional conduct and thus to protect the public and the administration of justice. Louisiana State Bar Assn. v. Heymann, 405 So.2d 826 (La.1981). This purpose is not served by imposing a greater discipline than is warranted by the seriousness of the conduct in question, considered in the light of all of the aggravating and mitigating circumstances.

Accordingly, it is ordered that Lewis Weinstein be issued an official public reprimand for his conduct in this matter. All costs are assessed to respondent.

      . In disciplinary matters after final conviction of a crime, the certificate of conviction is conclusive evidence of guilt, and the sole issue is whether the crime warrants discipline. However, the respondent is permitted to offer evidence of mitigating circumstances not inconsistent with the essential elements of the crime. Articles of Incorporation, La.St.Bar Assn., Art. 15, § 8(7).

      . The form letter, provided by the federal agency, simply indicated that a down payment was made. Graves signed the form and gave it to respondent as a part of each closing package.

      . The federal government also filed a civil action against respondent and others based on the alleged misconduct. Respondent has settled his portion of the lawsuit for $12,500.

      . In fact, one of the attorneys assigned to the federal prosecution of respondent’s case had to be recused when it was discovered that he had handled closings of Act 235 houses in his earlier practice in almost the identical manner as respondent did. Furthermore, respondent’s own legal secretary testified before the federal grand jury that respondent and Graves had refused to sell her an Act 235 house because she did not qualify and that she thereafter acquired such a house from another builder through the intervention of the F.H.A. area director, who “walked” her through the deal.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Hilary L. TRAHAN.
    No. 81-KA-1283.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jerry G. Jones, Dist. Atty., for plaintiff-appellee.
    Kenneth E. Badon, Lake Charles, for defendant-appellant.
   WATSON, Justice.

Following trial on one count of attempted first degree murder, Hilary L. “Poochie” Trahan was convicted by a jury of aggravated battery and sentenced to four years in the custody of the Department of Corrections. LSA-R.S. 14:34. He has appealed his conviction and sentence, assigning five specifications of error.

FACTS

On August 8,1980, lower Cameron Parish had been evacuated because of a hurricane warning. Deputy Charles Joseph Smith, Sr. of the Cameron Parish Sheriff’s Department was patroling in the Creole-Chenier Perdue area to protect the property of the absent residents from burglary and vandalism. Smith had ascertained that Willard and Bryan Theriot were checking on their cattle. When Smith encountered a Blazer vehicle, he tried to determine the occupant’s business in the evacuated area. He had trouble catching the vehicle and drove in excess of eighty-five miles per hour in pursuit. The Blazer’s driver finally stopped in a driveway. Smith also stopped. The Theriots had been following in their pickup truck and arrived at the scene just as the Blazer started backing up. Smith activated the red lights on the top of his patrol car and backed away to avoid a collision. His headlights revealed that the driver of the Blazer was “Poochie” Trahan. Trahan eluded the patrol car by climbing an embankment and another high speed chase ensued with Smith using his red lights and siren. Trahan said he was trying to get away because he was afraid of Smith. Because of Trahan’s reckless driving, Smith notified the sheriff’s office by radio that he was chasing a DWI suspect.

Trahan ran his vehicle across a cattle guard and through a metal gate into the marsh where he drove in circles. At the time, Smith did not know the pasture belonged to Trahan’s father. Smith stopped his vehicle short of the marsh. Trahan started driving “head-on” toward him but veered off. (Tr. 137) Smith fired a warning shot with his shotgun. His gun jammed. Smith drove the patrol car back to the cattle guard and stopped there to intercept the Blazer. Smith got out and stood on the left side between the open door and his car.

Trahan rammed his Blazer into the back of the patrol car at a speed of about thirty miles per hour. According to Smith, he “veered toward the driver’s side of the car where I was standing”. (Tr. 142) Trahan’s testimony was that he had intended to pass the patrol car on the left and veered to the right to avoid hitting Smith after Smith got out of his car. Trahan admitted he did not use his brakes. The deputy was struck with considerable force by the patrol car or the Blazer. Smith fell “belly down”. (Tr. 153) His jaw was numb; there was blood in his mouth; he couldn’t move his left arm. Tra-han turned him over and said:

“. .. Charles, you have picked me up for DWI three times. You ain’t going to bring me in this time. I’m going to do the shooting; I’m going to kill you.” (Tr. 168)

The two struggled over Smith’s pistol. Winston Theriot arrived, grabbed Trahan’s foot, and pulled him off of the deputy. Wildlife agent James Nunez arrived on the scene. He said Smith was bleeding badly and staggering. After Trahan was arrested by a state trooper, he said: “James Nunez, you’re going to be the next one I’ll run over.” (Tr. 319)

Deputy Charles Smith suffered a bruised right leg, a badly scratched and swollen left arm, and a split jaw. He was hospitalized for seven days. The jury saw color photographs of the injuries.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that a continuance for additional time to file pretrial motions should have been allowed after the state dismissed two of the four charges in the bill of information less than three days prior to trial. LSA-C.Cr.P. arts. 521, 703.

Originally, Trahan was charged with two counts of attempted first degree murder, a third count of aggravated criminal damage to property, and a fourth count of third offense DWI. Defendant’s motion to waive a jury trial on count four was heard and granted. Therefore, the DWI charge was removed from this jury trial. At the same time, the state dismissed the second count of attempted murder. LSA-C.Cr.P. art. 691. Defendant moved to quash the remaining counts for misjoinder. Although the motion was denied, the state complied with the motion by dismissing count three. Since count one required a twelve man jury and count three a six man jury, the state acted properly; a different mode of trial was required for the two offenses. LSA-R.S. 14:30, 14:27, 14:55; LSA-C.Cr.P. arts. 782, 493. This left Trahan charged with one count of attempted first degree murder.

Defendant argues that the trial court abused its discretion in not granting a continuance, because the amendment to the bill of information altered his trial strategy. However, defendant has demonstrated no prejudice. All four charges were based on the same set of facts. The state’s action granted the relief requested in defendant’s motion, and the trial court did not abuse its discretion in denying a continuance.

Defendant filed a motion on the morning of trial to suppress the results of any scientific tests for intoxication and any inculpatory statements. The State stipulated that it would not attempt to introduce any evidence based on scientific tests for intoxication. The trial judge denied the motion to suppress statements because it was not filed timely. LSA-C.Cr.P. art. 521. There was no error.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER TWO, THREE, AND FOUR

Defendant contends that the trial court erred in instructing the jury that aggravated battery was a responsive verdict to the charge of attempted first degree murder, arguing lack of evidence of the essential elements of aggravated battery.

Aggravated battery is a statutory responsive verdict to a charge of attempted first degree murder. LSA-C.Cr.P. art. 814. However, if there is a total lack of evidence of any element of aggravated battery, the conviction must be reversed. State v. Dauzat, 392 So.2d 393 (La., 1980).

The jury had to find that defendant intentionally used force or violence upon Charles Smith, employing a dangerous weapon. An essential element of a battery is physical contact. State v. Dauzat, supra.

Defendant relies on the testimony of criminologist Ray Herd. In Herd’s opinion, the Blazer was traveling, approximately 35 miles per hour when it hit the patrol car. His reconstruction of the impact established that the Blazer struck the patrol car on the left rear and pushed it in a straight line to the right. Since the deputy was standing adjacent to the car on the left side at the moment of impact, it is argued that the path of the cars was away from Smith. Thus, defendant claims the physical evidence shows he did not intend a collision with Smith, and neither car actually hit Smith.

When he drove his Blazer at Smith’s car, with Smith close beside it, defendant must have realized that serious consequences were reasonably certain. His unsolicited statement to Nunez indicates he tried to run Smith down. General criminal intent, the intent required for aggravated battery, was present. LSA-R.S. 14:10(2); In re Glassberg, 230 La. 396, 88 So.2d 707 (1956); State v. Brumfield, 329 So.2d 181 (La., 1976).

Defendant contends that Smith’s injuries were caused by the altercation on the ground following the collision and this constituted, at most, simple battery. The pictures of the injuries indicate more force than would have been generated by a hand to hand struggle. Smith said the Blazer “struck the car then struck me.” (Tr. 166) The evidence establishes physical contact either between the deputy and the Blazer or between the deputy and the patrol car when it was struck by the Blazer. There is no question that an automobile can constitute a dangerous weapon if used in a manner likely to cause death or great bodily harm.

A reasonable trier of fact could have concluded beyond a reasonable doubt that the essential elements of an aggravated battery were proven. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER FIVE

It is contended that the sentence is excessive and there was no compliance with LSA-C.Cr.P. art. 894.1.

The trial court was furnished with a lengthy presentence investigation report which revealed both favorable and unfavorable information. When sober, the defendant is a hard-working, industrious, family man; when drunk, he is violent. He has had previous encounters with the law, five involving batteries. The trial court carefully weighed all of the information, more than adequately complied with the statutory requirements relating to sentencing, and concluded that a four year sentence was appropriate. There is no abuse of discretion.

This assignment of error lacks merit.

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

       Judges William Norris, III and Fred Sexton, Jr., of the Court of Appeal, Second Circuit and Robert Lobrano of the Court of Appeal, Fourth Circuit participated in this decision as Associate Justices Ad Hoc joined by Justices Caloge-ro, Dennis, Watson and Lemmon.

      . It was learned that the property belonged to defendant’s father.


text:
    STATE of Louisiana v. Sterling TALBERT and Reginald Youngblood.
    No. 81-KA-1312.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Thomas Chester, Louise S. Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Thomas Ford, Dwight Doskey, Morris Hyman, New Orleans, Orleans Indigent Defender Program, for defendants-appellants.
   LEMMON, Justice.

Defendants’ principal contention in their appeal from a conviction of armed robbery is that the evidence does not support the jury’s finding that all of the elements of the offense were proved beyond a reasonable doubt.

While the victim was sitting in the back room of a lounge during the early morning hours, defendant Talbert placed an iron or wooden object, covered by his coat, against the victim’s back and demanded money under threat of killing the bar owner and the victim. The robbers took about $50 in cash.

The police responded immediately to the victim’s telephone call and drove down the street with the victim in search of the robbers. Within ten minutes of the crime, the police came upon two people on the sidewalk who were wearing clothes similar to those described by the victim. When the victim identified the men as the robbers, the police immediately arrested them and searched them, recovering approximately $50 in cash. However, the police did not find any object resembling a gun.

Defendants contend that the evidence was insufficient to prove that they were armed with a dangerous weapon.

Although defendant Talbert threatened to shoot the bar owner and the victim during the course of the robbery, the victim never saw a weapon. Moreover, when defendants saw the police car approaching them, they did not make any effort to throw away any weapon, and no weapons were found at the time of the search shortly after the robbery.

This court has held that when there is no direct evidence of the use of a dangerous weapon and the circumstances do not sufficiently support the jury’s finding of the use of such a weapon or instrumentality beyond a reasonable doubt, then the conviction of armed robbery cannot stand. State ex rel. Ferrand v. Blackburn, 414 So.2d 1207 (La. 1982). In the Ferrand case, defendant robbed a bakery truck with a newspaper draped over his arm, while threatening to shoot the victim. This court held that defendant’s statement that he had a gun was insufficient to prove beyond a reasonable doubt that defendant was armed with a dangerous weapon, because there was no direct evidence of a gun or, for that matter, of any instrumentality which, although not “inherently dangerous”, was used in a manner likely to create the risk of death or great bodily harm.

The Ferrand case is distinguishable because in the present case the victim did perceive with his senses the existence of a gun or similar instrumentality, and the victim gave direct evidence of the existence of the gun or instrumentality by his testimony that he felt an object like a gun or iron pipe pressed against his back. Whether the object pressed against the victim’s back was a pistol, a piece of pipe, or another instrumentality, is not dispositive. The highly charged atmosphere created by its use to intimidate the victim, accompanied by threats of shooting the owner and the victim, was sufficient to support the jury’s determination that the robber was “armed with a dangerous weapon.” R.S. 14:64. Compare State v. Green, 409 So.2d 563 (La.1982), with State v. Byrd, 385 So.2d 248 (La.1980).

Defendant Talbert also contends that the trial court erred in finding him to be a fourth felony offender. He argues that the record fails to show he was advised of his constitutional rights when he entered guilty pleas resulting in his second and third felony convictions. He was convicted of possession of heroin in March, 1971 and of simple robbery in October, 1973.

Because his plea to the controlled substance (heroin) indictment was entered prior to December, 1971, the state needed only to prove that defendant was represented by counsel at the entry of the plea. State v. Holden, 375 So.2d 1372 (La.1979). The record in this case contains such proof, and defendant has not otherwise shown the plea to be defective.

The record of the 1973 simple robbery conviction contains only a minute entry (establishing that defendant was represented by counsel at his plea) and a guilty plea form executed by defendant, his attorney and the trial judge. See State v. Tucker, 405 So.2d 506 (La.1981). While the content of the printed form is arguably deficient, defendant made no objection to its sufficiency at the multiple offender hearing and therefore cannot, for the first time on appeal, contend that the state failed to carry its burden of proving the validity of the plea. State v. Holden, above; State v. Jefferson, 379 So.2d 1389 (La.1980).

The convictions and sentences are affirmed.

DIXON, C. J., dissents.

       Judges William Norris, III, and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Robert Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices pro tempore, with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . See State v. Gould, 395 So.2d 647 (La.1981), for a discussion of the difference between an inherently dangerous instrumentality and an instrumentality which in the manner used is calculated or likely to produce death or great bodily harm.

      . There was ample opportunity, in terms of time and distance, for defendants to have disposed of a gun or other instrumentality between the robbery and their apprehension.

      . Defendant also contends that more than five years elapsed between the expiration of the maximum sentence for his last prior conviction and the date of the instant offense in December, 1978, thereby exempting him from habitual offender treatment. R.S. 15:529.1C. The record shows that contention is incorrect.

      .The issue arguably may still be raised by postcon\iction proceedings. However, only an error of constitutional dimension can be raised in such proceedings, at which defendants will have the burden of proving not just a violation of a per se court rule, but violation of a fundamental constitutional right. State v. Jackson, 389 So.2d 69 (La.1980), Lemmon, J., concurring.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Clarence BUXTON.
    No. 81-KA-1911.
    Supreme Court of Louisiana.
    June 21, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David Plavnicky, Michael Simpson, Louise S. Korns, and John H. Craft, Asst. Dist. Attys., for plaintiff-appel-lee.
    Vernon Thomas, Dwight Doskey, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Clarence Buxton was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury, defendant was found guilty as charged and sentenced to serve five years at hard labor. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

Defendant contends the state failed to produce sufficient evidence to sustain the conviction, specifically that there was an “unauthorized entering.”

La.R.S. 14:62 provides:

Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or theft therein ....

The record reflects that on October 1, 1980, defendant and another male removed two doors and a marble mantelpiece from a house at 1737 Jackson Avenue, belonging to Ms. Stella Roman. Due to her advanced age (87 years) and ill health, Ms. Roman could not be present in court to testify. She authorized William J. Wegmann, Sr., her attorney, to testify on her behalf regarding this matter. Mr. Wegmann testified that besides himself only certain named persons had authority to enter the premises. He further stated that defendant was not authorized to be in the house nor to remove any of the contents therefrom. Mr. Weg-mann stated: “No one had authority to remove any of the contents from the building, including myself.” He also stated: “No one had authority to be on the premises other than the people I have named.” While admitting on cross-examination that there could have been persons of whom he was not aware who had authority to enter the residence, he again stated on redirect examination that defendant did not have authority to enter the premises or to take items therefrom.

Gerald Edward Harmon, a construction foreman, testified that he was working on the house at 1722 Jackson Avenue at about 2 o’clock in the afternoon on October 1, 1980, when he noticed a car with a door laying on top of it and parked beside the house at 1737 Jackson Avenue. Mr. Harmon had been advised by his boss to watch the house. Knowing that the house was unoccupied and that there were never any cars parked there, Mr. Harmon crossed the street to investigate. He observed two men come down the back stairs of the house carrying the top of a mantel and put it in the back seat of the car. He then noticed the men go back inside the house and reappear a few seconds later carrying the sides of the mantel which they also put into the car. At this point, Mr. Harmon went to his house located two doors away and called his boss on the telephone. His boss told him that he would call the police and instructed Mr. Harmon to return to 1737 Jackson Avenue and tell the men to leave “that stuff alone, that it didn’t belong to them.” When Mr. Harmon went outside, he flagged down a passing police car and asked the policeman to accompany him. As Mr. Harmon and the police officer approached the house, the two men were trying to put a second door on the roof of the car. When the two men saw the police officer, they dropped the door. Mr. Harmon positively identified defendant as one of the two men he had seen removing the doors and mantel from 1737 Jackson Avenue.

Patrolman Louis Trudeau testified that he was patrolling Jackson Avenue at about 2 o’clock in the afternoon on October 1, 1980, when he was flagged down by Mr. Harmon. After speaking with Mr. Harmon, he proceeded to 1737 Jackson Avenue. There, he observed defendant and another male leave the house carrying a door which they began to put on top of a car. When the two men saw the officer, they dropped the door. Officer Trudeau placed them under arrest at that time. The two men later helped the officer carry the items back inside the house.

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

After review of the evidence in this case, we are convinced that defendant was not authorized to enter the premises at 1737 Jackson Avenue nor was he authorized to remove any of the contents therefrom. Mr. Wegmann testified that only certain named individuals besides himself were authorized to enter the house. He emphatically stated that no one had the authority to remove any of the contents of the house and that other than the named individuals no one had the authority to enter the house. While admitting that there could have been persons of whom he was not aware who had authority to enter the residence, Mr. Weg-mann specifically stated that defendant did not have the authority to enter the house or to take items therefrom. In addition, Mr. Harmon testified that he had been specifically asked to watch the premises and had seen defendant enter the house and carry out the doors and mantel. Both Mr. Harmon and Officer Trudeau stated that when the officer approached defendant and his male companion, they dropped the door they were carrying. Clearly, viewing the evidence in a 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. Accordingly, defendant’s conviction should be affirmed.

DECREE

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

LEMMON, J., concurs.

       Judges William Norris III and Fred C. Sexton, Jr. of the Second Circuit Court of Appeal and Judge Robert L. Lobrano of the Fourth Circuit Court of Appeal participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Defendant designated two errors to be urged on appeal. However, he neither briefed nor argued one of these assigned errors; therefore, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La. 1976); State v. Carlisle, 315 So.2d 675 (La.1975).