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

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. Yvonne MEYERS.
    No. 66835.
    Supreme Court of Louisiana.
    June 23, 1980.

      Lemmon, J., filed a concurring opinion.
    Calogero, J., filed a dissenting opinion.
    Skeels, Baker, Coleman & Strickland, Donald L. Baker, Shreveport, for plaintiff-applicant.
    Kenneth N. Simmons, Davis & Simmons, Many, for defendant-respondent.
   WATSON, Justice.

In this suit for executory process by General Motors Acceptance Corporation, the trial court awarded defendant, Yvonne Meyers, $3,775.58 for the wrongful seizure of her automobile. The Court of Appeal amended the judgment to add a reasonable attorney’s fee of $2,500. 377 So.2d 1355 (La.App. 3 Cir. 1979). A writ was granted to review the award of attorney’s fees because Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La., 1976) held that attorney’s fees cannot be recovered for wrongful seizure under a writ of fieri facias.

On the merits, the trial and appellate courts correctly found that seizure of the automobile was wrongful. Yvonne Sutton Meyers purchased a Cadillac and agreed to payments of $283.94 per month commencing July 21, 1977. Ms. Meyers received a GMAC brochure which stated in pertinent part:

“If the date your payments are due fails to conform with the date your income is received, or is otherwise inconvenient, please contact us regarding an adjustment of the due date.” (Tr. 24)

Defendant Meyers contacted GMAC’s service representative, Delores Ann Kohlman, who admitted telling Ms. Meyers that she could pay on the first instead of the twenty-first of each month. GMAC’s suit alleged nonpayment of the installments due October 21 and November 21, 1978. Since the contract had been altered by mutual consent of the parties, the installments were not due on those dates. Under the adjusted schedule the due dates were November 1 and December 1. On November 1, 1978, Ms. Meyers sent GMAC a bank money order for $142 and her personal check for $147. These items were received on November 7. On November 14, because the personal check was returned by the bank with the notation “endorsement can-celled”, GMAC mailed a form letter requesting “certified funds”. (Tr. 31) The letter, received on November 17, gave no indication that the entire note was being called because the installment due November 1 had not been fully paid. On November 18, Ms. Meyers sent a bank money order for $147 to GMAC and heard nothing further until suit was filed on November 28. Ms. Meyers’ account was current, and the suit was premature. LSA-C.C.P. art. 2753(2). The trial court concluded that the seizure was not only wrongful but made in bad faith and there is an ample basis for this factual conclusion.

When defendant Meyers reconvened in GMAC’s suit to enjoin the sale of the automobile, she had been deprived of her property; it had been physically taken by the sheriff and she was attempting to recover what was rightfully hers (Tr. 16, 17, and 18). The preliminary injunction restrained the sheriff, on behalf of GMAC, from proceeding with the sale. Had the injunction been wrongfully issued, Ms. Meyers would have been liable for damages including attorney’s fees of GMAC. LSA-C.C.P. art. 3608. Since the seizure was wrongfully issued and the injunction was properly issued, Ms. Meyers argues that the damages caused by GMAC, including attorney’s fees, are recoverable.

Generally, a successful litigant cannot recover attorney’s fees except where authorized by statute or contract. Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959). At the present time, there is no statutory authority for the recovery of attorney’s fees incurred to enjoin a wrongful seizure under executory process. Although attorney’s fees are allowed for dissolution of seizures under writs of attachment and sequestration (LSA-C.C.P. art. 3506) and for the dissolution of improvidently issued restraining orders and preliminary injunctions (LSA-C.C.P. art. 3608), the Legislature has not authorized the allowance of such fees in the case of executory process. The question is one which properly addresses itself to legislative action and not judicial fiat. The Court of Appeal erred in making the award as an item of special damages without statutory authority.

Of course, the necessity for litigation is a relevant consideration in assessing general damages. The trial court here gave $3,775.58 in general damages, which is within its discretion under the circumstances. It appears that the trial court recognized the necessity of plaintiff obtaining counsel and engaging in judicial proceedings when making the award. However, the assessment of attorney’s fees as an item of special damages is improper.

This is in accord with the case of Fallin v. J. J. Stoval, 141 La. 220, 74 So. 911 (1917) which dealt with a writ of fieri faci-as, wherein it was held that a claim for attorney’s fees was not allowable. Just as there is no statutory provision for attorney’s fees to enjoin a wrongful seizure under executory process, neither has the legislature authorized the award of attorney’s fees in the dissolution of a wrongfully issued writ of fieri facias. See Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La., 1976).

We disapprove of the line of cases from the Courts of Appeal allowing attorney’s fees in the case of executory process. E. g., Escat v. National Bank of Commerce in New Orleans, 284 So.2d 832 (La.App. 4 Cir. 1973); General Investment, Inc. v. Gaudet, 303 So.2d 624 (La.App. 4 Cir. 1974); Walker v. J. J. Ellis Lake Providence Furni ture Corp., 107 So.2d 550 (La.App. 2 Cir. 1958); Mid-State Homes, Inc. v. Bice, 361 So.2d 275 (La.App. 1 Cir. 1978).

For the foregoing reasons, the judgment of the Court of Appeal is reversed with respect to the award of attorney’s fees for the dissolution of the wrongful seizure under executory process; otherwise, it is affirmed.

AFFIRMED IN PART AND REVERSED IN PART.

LEMMON, J., concurs and assigns reasons.

CALOGERO, J., dissents and assigns reasons.

LEMMON, Justice,

concurring.

In performing its function, the Legislature apparently made a decision that attorney’s fee shall be awarded as an additional item of damages when a creditor wrongfully seizes property under a conservatory writ of attachment or sequestration and shall not be awarded when a creditor wrongfully seizes property under a judgment (by writ of fieri facias) or under a confession of judgment (by executory process). The decision to set up different classifications is justified by the harsh nature of a pre-judgment (or pre-confession of judgment) seizure.

The judicial function is to inquire, not into the wisdom of the legislative decision, but into the intention and legality of that decision. In performing its judicial function, the court in this decision approves the apparent legislative decision discussed above.

CALOGERO, Justice,

dissenting.

This Court has allowed attorney’s fees for the dissolution of wrongful seizure under executory process. Marine Bank & Trust Co. v. Schaffer, 166 La. 164, 116 So. 838, 842 (La.1928). The First, Second and Fourth Circuits have similarly allowed recovery of attorney’s fees. Mid-State Homes, Inc. v. Bice, 361 So.2d 275 (La.App. 1st Cir. 1978); Walker v. J. J. Ellis Lake Providence Furniture Corp., 107 So.2d 550 (La.App. 2nd Cir. 1958); General Investment Inc. v. Gaudet, 303 So.2d 624 (La.App. 4th Cir. 1974).

As was stated in Escat v. National Bank of Commerce in New Orleans, 284 So.2d 832 (La.App. 4th Cir. 1973):

“Executory process is a harsh remedy. It issues immediately, solely upon the ex parte application of the plaintiff, and once the defendant’s property has been seized a sheriff’s sale automatically follows in due course unless the owner takes affirmative action by way of retaining counsel to enjoin the sale and secure the release of his property. We see no reason why a party who is the victim of an unlawful seizure should be penalized by being denied the right to recover the attorney’s fees which he incurs as a result of the wrongful action of the seizing party.”

Finding the foregoing jurisprudence controlling I conclude that attorney’s fees are recoverable for dissolution of wrongful seizure under executory process. Therefore, I respectfully dissent.

      . The money order (P-6) was later returned to Ms. Meyers with a letter dated December 14, 1978.

      . An injunction to arrest an executory proceeding is a defense rather than an incidental action. Semel v. Green, 252 La. 386, 211 So.2d 300 (1968).


source: Caselaw Access Project

author: LEMMON, Justice. WATSON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Charles BYRD.
    No. 66767.
    Supreme Court of Louisiana.
    June 23, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Orleans Indigent Defender Program, Robert Barnard, New Orleans, for defendant-appellant.
   LEMMON, Justice.

For attempting robbery with a toy pistol defendant was convicted of attempted armed robbery and sentenced to four years at hard labor, without benefit of parole, probation or suspension of sentence. The issue on appeal is whether the toy pistol, in the manner used under the circumstances of this case, constituted a dangerous weapon within the contemplation of R.S. 14:64 and 14:2(3).

I.

The facts are undisputed. Defendant ordered a single piece of fried chicken at the side window of a restaurant. When the employee rang up the sale on the cash register and asked for 57 cents, defendant produced a toy pistol from his pocket and held it up in the air, demanding all of the money in the register. The employee stated there was no money, and defendant grabbed the piece of chicken and began to walk away. However, the employee grabbed the chicken back and closed the window on defendant, who then left the window.

Two policemen, who happened to observe the incident from across the street (and were not called by the employee), stopped defendant and searched him, finding the toy pistol.

II.

Numerous cases have developed the theory that the victim’s potential reaction to an instrumentality not inherently dangerous can be considered by the jury in determining whether the instrumentality “in the manner used” is likely to produce great bodily harm and is therefore a “dangerous weapon”. Under that theory the pertinent inquiry here is whether defendant’s use of the toy pistol created a life endangering situation, as in State v. Levi, 250 So.2d 751 (La.1971).

The undisputed facts in this record simply do not provide reasonable support for the apparent conclusion that the toy pistol in the manner used was likely to produce bodily harm. The actions of the victim and of the defendant refute the State’s contention that the manner of use created the “highly charged” atmosphere described by the Court in State v. Levi, above. While defendant admitted he intended to rob the restaurant, he asserted he used the toy pistol so as not to hurt anyone. He did not threaten to harm, nor did he even refer to the toy pistol as a weapon. The victim testified that defendant did not point the toy pistol at him. Indeed, the victim’s subjective reaction indicates he did not perceive any likelihood of great bodily harm.

This is not to say that a toy pistol can under no circumstances be used as to create a life endangering situation which supports a guilty verdict of armed robbery. But under the facts and circumstances of this case a reasonable trier of fact, viewing the evidence in the light most favorable to the prosecution, simply could not conclude that all elements of the offense of armed robbery have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The result we reach is supported by an analysis of the criminal statutes relating to Misappropriation with Violence to the Person. The offense of simple robbery requires the use of force or intimidation by one not armed with a dangerous weapon, while the offense of armed robbery requires something additional in the way of dangerousness. The seriousness of that additional something is dramatically illustrated by comparison of available sentences. For simple robbery the maximum sentence is seven years (recently raised from five), with or without hard labor, and parole, probation and suspension of sentence are available. But for armed robbery the minimum sentence is five years at hard labor, without benefit of parole, probation or suspension of sentence. Clearly, the statutory scheme contemplates the more severe penalty is intended to deter the use of truly dangerous instrumentalities. Imposition of the mandatory sentence for offenses which do not involve dangerous weapons (and which are covered by other statutes and penalties) defeats the overall scheme and perhaps even encourages use of dangerous weapons.

We therefore set aside the conviction of armed robbery.

III.

Decision on the decree in this case poses a separate and rather difficult problem.

When the evidence does not support a conviction of the crime charged, the Court has generally remanded with instructions to discharge the defendant. See State v. Allien, 366 So.2d 1308 (La.1978). However, the discharge of the defendant is neither necessary or proper when the evidence does support a conviction on a lesser and included offense which was a legislatively authorized responsive verdict. See State v. Tillman, 356 So.2d 1376, n. 2 at 1379 (La.1978).

In this case all of the elements of the crime of attempted simple robbery necessarily have been proved beyond a reasonable doubt to the satisfaction of the trier of fact. The verdict of guilty of the greater offense explicitly reflects the finding that defendant attempted to commit the theft of something of value which was in within the immediate control of the victim. See R.S. 14:64, 65, and 67.

Since all the elements of the lesser and included offense of attempted simple robbery have been proved beyond a reasonable doubt, this Court should not strike down all of those adequately supported findings merely because the evidence did not reasonably support the conclusion that an additional element also existed.

Past decisions of this Court can perhaps be construed to indicate a reluctance to order a judgment of conviction for a lesser and included offense. In State v. White, 315 So.2d 301 (La.1975) the jury returned a verdict of guilty of attempted theft, without specifying the value of the stolen property, when the indictment had charged attempted theft of property valued at more than $500. We held that the jury verdict could not stand because it failed to specify the property value and thus the degree of theft involved, but rather than render a verdict of guilty of misdemeanor theft (a verdict necessarily implicit in the finding that defendant at least attempted to steal something worth $100 or less), we sent the case back for retrial.

In City of Monroe v. French, 345 So.2d 23 (La.1977) we held that when the sole evidence supporting an essential element of the offense is ultimately determined on review to be inadmissible, the defendant should be retried on competent evidence rather than discharged.

We are not here constrained by this prior jurisprudence, nor do we need to overrule the decisions in White, French and other cases on this issue. In the White case the court was concerned that the jury’s inadvertence in failing to specify the amount of the property value (when it should have done so in the verdict) should not preclude the state from getting a conviction on the crime charged in the indictment. We were not confronted with a situation in which the evidence was insufficient to support the verdict, but rather with one in which the court could not infer from the verdict the property value found by the jury. And in the French case we were concerned that the state, had the trial judge properly excluded the inadmissible evidence, might have had other evidence available which would have been admissible.

However, when it is clear from the verdict that the trial judge or jury necessarily found the elements of a lesser and included offense had been proved beyond a reasonable doubt, and the state, constrained by the double jeopardy clause, cannot seek anew a conviction on the greater offense, a remand for a new trial would serve no useful purpose. See Joseph, Work of the Louisiana Appellate Court for the 1976-77 Term-Criminal Trial and Post-Conviction Procedures, 38 La.L.Rev. 533, 557 (1978).

Ordering entry of a judgment of guilty of the lesser and included offense of attempted simple robbery in the present case accords with the overwhelming treatment of this problem by other jurisdictions. See White v. State, 348 A.2d 688 (Del.1975); People v. Oliver, 38 Ill.App.3d 166, 347 N.E.2d 865 (1976) (Court Rule 615b3 provides that Supreme Court can reduce to lesser degree of offense); Commonwealth v. Vanderpool, 328 N.E.2d 823 (Mass.1975) (General Law C278 § 33E provides that the court has the power and duty to consider the whole case to determine if the verdict should be changed in the interest of justice); People v. Hoffmeister, 394 Mich. 155, 229 N.W.2d 305 (Mich.1975) (“It is proper to remand for entry of a judgment of conviction of the lesser included offense where the jury has returned a verdict of guilty of the higher charged offense upon evidence sufficient only to prove the lesser offense”); People v. Ford, 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132 (1966) (Penal Code § 1181, subd. 6, gives the court specific powers to reduce degree of crime); State v. Eliason, 25 Ariz.App. 523, 544 P.2d 1124 (1976); and People v. Codding, 191 Colo. 168, 551 P.2d 192 (1976).

This procedure does not constitute interference with the function of the trial judge or jury in a criminal trial, but rather constitutes action in accordance with the findings of the trier of fact. Moreover, this procedure does not deprive defendant of his right to have a trial judge or jury decide on the proof of the elements of the lesser and included offense, but rather recognizes that the trier of fact has already made that decision. This procedure also does not subject defendant to double jeopardy, because there will be no new proceedings in which the state will be given an opportunity to relitigate his guilt. See U.S. v. Boyd, 566 F.2d 929 (5th Cir. 1978). Finally, this procedure is not contrary to the federal constitutional principle that a jury verdict must not stand if, when the evidence is viewed in the light most favorable to the prosecution, a rational jury could not have found the essential elements of the crime beyond a reasonable doubt.

To give effect to all competing considerations and constitutional principles the court must sometimes fashion a procedure not provided for or contemplated by the Code of Criminal Procedure or other statutory provisions. In such instances C.Cr.P. art. 3 dictates that the Court proceed in a manner consistent with the spirit of the Code and other applicable legislation. For an analogous situation to the procedure used here, see State v. Craig, 340 So.2d 191 (La.1976), in which the case was remanded for sentencing for simple rape after the death penalty for aggravated rape had been declared unconstitutional.

By remanding in this case for sentencing for the offense of attempted simple robbery, the court is proceeding in accordance with the spirit of the responsive verdict articles of the Code (C.Cr.P. arts. 814 and 815) and with the findings of the trier of fact. The supported conclusion that defendant attempted to commit a theft of something of value in the immediate control of the victim by use of force or intimidation is being given full effect. The court’s duty to enforce defendant’s constitutional right only requires striking of the trial court’s finding which is not adequately supported by the evidence.

Accordingly, the conviction of armed robbery and the sentence are set aside, and the matter is remanded to the trial court with instructions to enter a judgment of guilty of attempted simple robbery and to sentence the defendant accordingly.

CONVICTION AND SENTENCE SET ASIDE, REMANDED FOR ENTRY OF JUDGMENT OF GUILTY AND FOR SENTENCING.

BLANCHE and MARCUS, JJ., dissent.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

Whether the toy pistol constituted a “dangerous weapon” is a close question. I am inclined to agree with the trial court.

If, as held by the majority, it is not a dangerous weapon, defendant must be acquitted. In rendering a verdict of guilty to the lesser included offense of attempted simple robbery, this court has decided questions of fact. The Louisiana Constitution of 1974 in Article 5, Section 5(C) provides that “In criminal matters, [the Supreme Court’s] appellate jurisdiction extends only to questions of law.”

The majority has found, after a review of the evidence, that the three elements of attempted simple robbery have support in the record. Accordingly, a verdict of guilty as to the lesser included offense of attempted simple robbery has been rendered by a super jury from this court.

The overwhelming majority of jurisdictions which allow this result do so by statutory authority. See, Arizona (A.R.S. § 13-4036); California (West’s Ann. Penal Code § 1260); Colorado [C.A.R., Rule 35(e)]; Florida (F.S.A. § 924.34); Illinois [Sup.Ct. Rules, Rule 615(b)]; Indiana [Burn’s Ind. Stat.Ann., App.Pro., Rule 15(N)]; Massachusetts (Mass.Gen.L.Ann., c. 278 § 28B); Michigan [Mich.Ct.Rules, Rule 865.1(7)]; Minnesota [M.S.A.-R.C.P., Rule 29.02(12)]; Montana [Rev.Codes of Mont., 95-2426(1)]; New York (Crim.Proc.L., 300.40, Sub. 3, par. [b]); Ohio (Page’s O.Rev. Code-Const., art. IV, § 2); Oregon (O.R.S.-Const., art. VII, § 3); and Texas [Vernon’s Ann.C.Cr.P., art. 44.24(b)]. Vermont has recognized that in the absence on constitutional or statutory authorization, its Supreme Court does not have the inherent authority to modify a criminal judgment. State v. Girouard, 373 A.2d 836 (Vt., 1977). Two states with express authorization to modify also seem to recognize an inherent power to do so: Delaware [State Const., art. IV, § ll(l)(b) and Porter v. State, 243 A.2d 699, 703 (Del., 1968)] and Pennsylvania [Purdon’s Penn. StatAnn., 42:502 and Commonwealth v. Sterling, 314 Pa. 76, 170 A. 258 (1934)]. Apparently only four jurisdictions recognize an inherent right to modify independent of other authorization: Arkansas [Wills v. State, 193 Ark. 182, 98 S.W.2d 72 (1936)]; Mississippi [Daniels v. State, 196 Miss. 328, 17 So.2d 793 (1944)]; Oklahoma [Jones v. State, 555 P.2d 63 (1976)]; and, Tennessee [Forsha v. State, 183 Tenn. 604, 194 S.W.2d 463 (1946)].

Louisiana law does not permit the entry of a guilty verdict by this court. “[T]he jury shall be the judges of the facts pertaining to the question of guilt or innocence, in criminal cases.” State v. Pairs, 145 La. 443, 82 So. 407 at 409 (1919).

I respectfully dissent.

      . R.S. 14:2(3) defines dangerous weapon to include “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.”

      . On motion for new trial the trial judge noted the absence of any indication of dangerousness in defendant’s actions, but felt constrained by prior appellate decisions to find defendant guilty of armed robbery.

      . Defendant claimed he had worked regularly and supported his wife and child, but had been out of work for five weeks when he attempted to steal money to pay the rent. He had no prior arrests and had never been in trouble before, but was subject to a minimum mandatory sentence without possibility of probation or parole.
      Perhaps the legislature will clarify the situation. (There is a presently pending bill which defines armed robbery to include the situation in which the victim is reasonably led to believe the robber is armed with a dangerous weapon.) But until such clarification the doubt should be resolved in favor of lenity. State v. McCarroll, 337 So.2d 475, (La.1976).

      . Here, defendant’s demand that the employer give him all the money in the cash register (funds under the employer’s immediate control) reflected Byrd’s specific intent to steal those funds. The verdict of guilty of attempted armed robbery required a finding that defendant acted with a specific intent to commit a theft and that he did an act tending directly toward the accomplishment of that crime (theft). R.S. 14:27. The evidence also establishes defendant attempted to obtain the money by intimidation, that is, by displaying a toy pistol. See R.S. 14:65.

      . For a case with a similar result, see State v. Cooper, 297 S.W.2d 75 (Tenn.1956), which involved a remand for resentencing in a toy pistol case. See also Annotation, 61 A.L.R.2d 993.


author: LEMMON, Justice. BLANCHE, Justice

text:
    STATE of Louisiana v. Alan D. LUCAS.
    No. 67363.
    Supreme Court of Louisiana.
    June 23, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
    Jack Quarles, Indigent Defender Program, Gretna, for defendant-relator.
   LEMMON, Justice.

This matter is before the court on a writ of certiorari granted to review the trial court’s summary revocation of relator’s probation the same day relator was sentenced.

Relator pleaded guilty to the charge of obscenity in the presence of counsel on January 20, 1980. On February 15 relator appeared without counsel and was sentenced to serve one year in the parish prison and to pay a fine of $250. The judge suspended the jail sentence on the condition that relator serve thirty days in jail, spend two years of active probation, submit to evaluation and treatment at a mental health unit, and tour the state penitentiary to “see the direction you are heading”.

After imposing the sentence, the judge instructed relator to be seated in the courtroom to await the arrival of a probation officer, but relator instead attempted to flee from the courtroom. When relator was captured, the judge immediately cited him for contempt of court and summarily revoked his probation, evidently because of the contemptuous conduct.

Through new counsel relator applied for supervisory writs, questioning the trial court’s action in revoking probation without notice of the basis of revocation or an opportunity to speak in mitigation until after the judge had revoked probation.

The procedure utilized to revoke relator’s probation did not comply with the requirements set forth in Gagnon v. Scarpeli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), most particularly the provision of an opportunity to be heard in person and to present witnesses and documentary evidence. See also State v. Harris, 368 So.2d 1066 (La.1979) and State v. Rideau, 376 So.2d 1251 (La.1979). While C.Cr.P. art. 900 provides that the hearing may be informal or summary, the code clearly contemplates that the defendant be given an opportunity to explain mitigating circumstances relating to the violation before the judge decides on whether to revoke probation. Moreover, the fact that relator was sentenced in this case without the calming influence of counsel, who had earlier advised him as to his guilty plea, may well serve as an explanation in mitigation of his impulsive reaction when a hearing is held in a calmer atmosphere.

Because we set aside the probation revocation for failure to accord relator due process, we do not reach the issue of whether the revocation should be set aside because the contempt of court was not “criminal conduct” under C.Cr.P. art. 895 or because the contempt conviction was not a subsequent conviction of a felony or of a misdemeanor under Title 14 or Title 40 of the Revised Statutes, as required by C.Cr.P. art. 901 for revocation for commission of another offense.

Accordingly, the order revoking relator’s probation is set aside, and the matter is remanded for further proceedings.

SET ASIDE AND REMANDED.

MARCUS, J., concurs.

BLANCHE, J., concurs and assigns reasons.

BLANCHE, Justice

(concurring).

Relator violated a direct order of the judge in the presence of the judge, and the only evidence the defendant could have presented at this point was an explanation of his flight from the courthouse in direct violation of the judge’s order. Pretermit-ting the question of whether these actions are considered “criminal conduct”, due process under these facts has little or no substance.

I am not sure that defendant waived his right to counsel at sentencing, and would start over if for no other reason than to avoid another writ application.

      . The specific conditions were authorized by C.Cr.P. Art. 895, which also provides the general condition that the defendant “refrain from criminal conduct”.

      . After the trial judge revoked probation, relator was given the opportunity to speak and immediately tried to withdraw his guilty plea.


text:
    STATE in the Interest of Brent Vail Joseph BRUNO.
    No. 67771.
    Supreme Court of Louisiana.
    June 13,1980.
   In re Brent Vail Joseph Bruno, applying for supervisory and remedial writs, and stay order. Parish of St. Tammany. No. 210 JJ.

Granted.


text:
    CONSTRUCTION MATERIALS, INC. v. AMERICAN FIDELITY FIRE INSURANCE COMPANY.
    No. 67151.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Construction Materials, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 383 So.2d 1291.

Writ granted.


text:
    Dale GAUDET, Ind., etc. et al. v. G. D. C., INC. et al.
    No. 67164.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Dale Gaudet, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 383 So.2d 1289.

Wr¡t ¿enje(j

WATSON, J., would grant the writ.


text:
    William G. WASCOM et al. v. AMERICAN INDEMNITY CORPORATION et al.
    No. 67402.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Allstate Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, 21st Judicial District Court. Parish of Tangipahoa. 383 So.2d 1037.

Granted.


text:
    STATE of Louisiana v. Curtis C. GRIMBLE.
    No. 67501.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Curtis C. Grimble, applying for writ of certiorari. Parish of East Baton Rouge, 19th Judicial District Court. No. 1-80-617.

Granted.


text:
    STATE of Louisiana v. Stanley PASSMAN.
    No. 67530.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re State of Louisiana through the District Attorney Ossie Brown, Parish of East Baton Rouge, applying for supervisory writs.

Granted.


text:
    STATE of Louisiana v. Clyde MERRITT.
    No. 67545.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Clyde Merritt, applying for writs of certiorari, and stay order. Parish of Orleans.

Granted. The ruling of the trial judge is reversed. The record reflects that the relator was under 3 subpoenas for 3 different sections of court on the same morning, and had notified court personnel that he would be in one of those sections when called by court personnel.


text:
    Wayne D. JOINER v. C. G. WEEKS et al.
    No. 67467.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Wayne D. Joiner, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 383 So.2d 101.

Denied.

DIXON, C. J., would grant. Anytime one man calls another a con-man with crooked ways he ought to be put to the proof.


text:
    STATE of Louisiana v. William HILLS, III.
    No. 67476.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re William Hills, III, applying for remedial writs. Parish of East Baton Rouge, 19th Judicial District Court. No. 57,780.

Denied.


text:
    STATE of Louisiana v. Robert E. PAUL.
    No. 67495.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Robert E. Paul, applying for remedial writ. Parish of Terrebonne, 32nd Judicial District Court. No. 86,622.

Granted; relator is permitted to act as his own co-counsel.


text:
    STATE of Louisiana ex rel. Craig E. WHITT v. Harry CONNICK.
    No. 67606.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Craig E. Whitt applying for remedial writs. Parish of Orleans. No. 269-398.

Denied.


text:
    STATE of Louisiana v. Gary GARB.
    No. 67600.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Gary Garb, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Iberia. No. 29758.

Denied.

CALOGERO, J., would grant the writ.


text:
    Evie Chreene CORDOVA, Administratrix of the Succession of Frank Cordova v. Alice Faye CORDOVA, Administratrix of the Succession of G. C. Cordova, Individually.
    No. 67465.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Alice Faye Cordova, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of DeSota, 11th Judicial District Court. No. 13,643.

Denied.


text:
    Celeste PONTICO et al. v. Darren J. ROUSSEL et al. LIBERTY MUTUAL INS. CO. et al. v. Darren ROUSSEL.
    No. 67345.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Government Employees Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 77-9275 c/w No. 77-521.

Denied.

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


text:
    Albert MITCHELL v. LOUISIANA POWER AND LIGHT CO., P & M Roofing Corporation, Fred W. Walton, R. L. Martin & Associates, et al.
    No. 67316.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Albert Mitchell applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 124-324.

Denied.


text:
    STATE of Louisiana v. Craig B. PARKER and Kim Miller.
    No. 67631.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Robert C. Schega, applying for remedial writ. Parish of Orleans, Criminal District Court, Section F. No. 274-501.

Granted; the ruling of the trial court is reversed and set aside. Case is remanded for further proceedings. See R.S. 15:41 and C.Cr.P. Art. 167.


text:
    STATE of Louisiana v. Joe Edward WILLIAMS.
    No. 67641.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Joe Williams, applying for writs of review, prohibition and stay order. Parish of Ouachita. No. 38,241.

Granted. Relator is ordered returned and given a hearing to determine whether he is charged with a serious offense and likely to commit crimes of violence (Art. 648 C.Cr.P. first paragraph); and accordingly to determine to which mental institution he should be committed.


text:
    STATE of Louisiana v. David Mark TURNER.
    No. 67651.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re David Mark Turner, applying for writs of certiorari, prohibition, review and stay order. Parish of St. Tammany. No. 76242.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana ex rel. Noble T. LEWIS v. STATE of Louisiana.
    No. 67653.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Noble T. Lewis applying for writ of habeas corpus. Parish of Orleans. No. 267-897.

Denied.


text:
    STATE of Louisiana ex rel. Joseph J. CARTER v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67475.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Joseph J. Carter, applying for writs of certiorari, prohibition and mandamus. Parish of St. Mary. No. 14,023.

Granted. Trial court is ordered to furnish relator with copy of transcript of evi-dentiary hearing which hearing was previously ordered by this Court.

BLANCHE and WATSON, JJ., would deny the writ.


text:
    STATE of Louisiana ex rel. Kent WARREN v. STATE of Louisiana.
    No. 67526.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Kent Warren, applying for remedial writs. Parish of St. Tammany. No. 76211.

Denied.


text:
    STATE of Louisiana ex rel. Jerry L. SUMLIN v. STATE of Louisiana.
    No. 67528.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Jerry L. Sumlin, applying for remedial writs. Parish of Webster. No. 47,068.

Writ denied.


text:
    STATE of Louisiana ex rel. Lynda CYRUS v. STATE of Louisiana.
    No. 67554.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Lynda Cyrus, applying for writ of mandamus and forma pauperis. Parish of Orleans, Criminal District Court. No. 269-164.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Roger SALLETTES, Jr. v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67499.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Roger Sallettes Jr., applying for habeas corpus, mandamus, certiorari. Parish of Jefferson, 24th Judicial District Court. No. 72-894.

Denied.


text:
    STATE of Louisiana ex rel. McArthur JOHNSON v. STATE of Louisiana.
    No. 67474.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re McArthur Johnson, applying for remedial writs. Parish of Bossier. No. 52-260.

Denied.


text:
    Dolly Darlene Reppond RUSHING v. STATE of Louisiana, Through LOUISIANA HEALTH & HUMAN RESOURCES ADMINISTRATION, et al.
    No. 67449.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Dolly Darlene Reppond Rushing, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 12,996.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Thomas HURST v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67468.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Thomas Hurst, applying for writs of habeas corpus, mandamus and certiorari. Parish of Orleans. No. 206-751.

Writ denied. Application moot.


text:
    STATE of Louisiana ex rel. Paul J. LACOSTE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67494.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Paul J. Lacoste, applying for writ of certiorari and review. Parish of Orleans, Criminal District Court. No. 220-274.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Coleen TARTER.
    No. 67502.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Coleen Tarter, applying for supervisory writs and stay order. Parish of Orleans. No. 273-720.

Writ denied.


text:
    STATE of Louisiana v. James A. BULLOCK.
    No. 67513.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re James A. Bullock applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 243-998.

Denied.


text:
    Eric McANELLY v. TANO CORPORATION.
    No. 67607.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Tano Corporation, applying for supervisory writs. Parish of Orleans. No. 79-16375.

Granted. It is ordered that document referred to by plaintiff at his deposition be produced for inspection by relator.

BLANCHE and WATSON, JJ., would deny the writ.


text:
    STATE of Louisiana v. Robert HARRISON, Jr.
    No. 65183.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Robert Harrison, Jr., applying for reconsideration of denied writ of September 18, 1979. Parish of Orleans. No. 259-389.

Denied.


text:
    STATE of Louisiana ex rel. Bifford M. McQUIRE v. STATE of Louisiana.
    No. 67549.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Bifford M. McQuire, applying for writ of habeas corpus. Parish of Jefferson. Number unknown.

Granted. The trial judge is ordered to act on the writ.


text:
    STATE of Louisiana v. Joseph EDWARDS.
    No. 67535.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Joseph Edwards applying for remedial writs. Parish of Orleans. Nos. 210-200, 211-982.

Denied.


text:
    Barbara W. Carlton, Wife of/and Wayne H. CARLTON, Jr., and the Continental Insurance Company v. The FIRESTONE TIRE & RUBBER CO.
    No. 67537.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re The Firestone Tire & Rubber Company, applying for supervisory writ of cer-tiorari and mandamus. Orleans Parish. No. 79-6111.

Denied.

BLANCHE, J., would grant the writ.


text:
    Mrs. Leah Elizabeth Ziegler, Wife of Jim GARRISON v. Jim GARRISON.
    No. 67538.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Harry R. Cabral, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Civil District Court. Parish of Orleans. No. 11516.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Frederick D. GRAY.
    No. 67557.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Frederick D. Gray, applying for writ of certiorari and review. Parish of Caddo. No. 111,677.

Writ denied.


text:
    STATE of Louisiana v. Donald Ray CLEMONS.
    No. 67574.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Donald Ray Clemons, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo, 1st Judicial District Court. No. 113,736.

Denied.


text:
    STATE of Louisiana ex rel. Jimmy A. MAMON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67381.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Jimmy A. Mamón applying for remedial writs. 2nd Judicial District Court. Parish of Jackson. Number unknown.

Granted and transferred to the district court for action on the application.


text:
    STATE of Louisiana ex rel. Carl SANGER, a/k/a James Wilson v. STATE of Louisiana.
    No. 67520.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Carl Sanger, a/k/a James Wilson, applying for remedial writ. Parish of Cad-do, 1st Judicial District Court, unknown. Number

Denied.


text:
    STATE of Louisiana ex rel. Carl SANGER a/k/a James Wilson v. STATE of Louisiana.
    No. 67580.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Carl Sanger, applying for remedial writs. Parish of Caddo, 1st Judicial District Court. No. 109,527.

Denied. Based on information from the judge, the application is moot.


text:
    STATE of Louisiana v. Morris BORRAS.
    No. 67640.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Morris Borras, applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Jefferson, 24th Judicial District Court, Section H. No. 80-1001.

Denied.


text:
    James BUCKLEY et al. v. EXXON CORPORATION et al.
    No. 67532.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re James Buckley et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, 36th Judicial District Court. Parish of Beauregard. No. 7480.

Granted.


text:
    Miguel A. SOSA v. Julius SPELL et al.
    No. 67529.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Miguel A. Sosa, applying for writs of certiorari, prohibition and mandamus. Parish of St. Tammany, 22nd Judicial District Court. No. 54,378.

Denied.


text:
    Jesse R. COLEMAN, Jr. v. The TOWN OF ZACHARY, Louisiana, et al.
    No. 67508.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Jesse R. Coleman, Jr., applying for remedial writs. Parish of East Baton Rouge, 19th Judicial District Court. No. 231,621.

Denied.


text:
    Timothy J. CRYER v. CLERK OF COURT, 36TH JUDICIAL DISTRICT COURT, PARISH OF BEAUREGARD, State of Louisiana.
    No. 67472.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Timothy J. Cryer, applying for writ of review, and habeas corpus. Parish of Beauregard, 36th Judicial District Court. No. 169-79.

Denied.


text:
    Terry FRANKLIN, Hunt Correctional Center v. Warden, Ross MAGGIO.
    No. 67496.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Terry Franklin, applying for writ of habeas corpus. Parish of West Baton Rouge, 18th Judicial District Court. No. 64706.

Writ denied.


text:
    Sam B. LUCITO v. CARTER OIL COMPANY et al.
    No. 67466.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Sam B. Lucito, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa, 21st Judicial District Court. No. 13011.

Denied.

WATSON, J., would grant the writ.


text:
    Joseph P. MACALUSO v. Henry WALLY et al.
    No. 67462.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Joseph P. Macaluso, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa, 21st Judicial District Court. No. 53788.

Denied.

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


text:
    Ruben E. GRIFFIN v. Rose Marie Palmer GRIFFIN.
    No. 67454.
    Supreme Court of Louisiana.
    May 30,1980.
   In re Rose Marie Palmer Griffin, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, 19th Judicial District Court. No. 13,044.

Denied.


text:
    Lon CONNOR v. Jack FARMER et al.
    No. 67486.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Cotton Belt Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 382 So.2d 1069.

Not considered; not timely filed. See Rule 10, Sec. 5(b).


text:
    Jerry L. ARCENEAUX v. JEFFERSON DAVIS PARISH POLICE JURY et al.
    No. 67507.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Jerry L. Arceneaux, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. 31st Judicial District Court, Parish of Jefferson Davis. 383 So.2d 138.

Writ denied.


text:
    Albert SINITIERE, Jr., et al. v. Gerald W. LAVERGNE et al. Gerald LAVERGNE v. DEPARTMENT OF DEVELOPMENT AND TRANSPORTATION et al.
    No. 67482.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re State of Louisiana, through the Department of Transportation and Development, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Lafayette. 381 So.2d 522, 381 So.2d 528.

Granted.


text:
    Kenneth GOODWIN v. Steve STATHES and Employers Casualty Company.
    No. 67522.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Steve Stathes and Employers Casualty Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 381 So.2d 1327.

Denied.


text:
    Earl W. EWEN et ux. v. BATON ROUGE GENERAL HOSPITAL et al.
    No. 66333.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Earl W. Ewen and Judith Ewen, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 378 So.2d 172.

Denied.


text:
    Hattie Markham HORNEMAN et al. v. Clifford Keith GILES.
    No. 67516.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Clifford Keith Giles, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, 26th Judicial District Court. Parish of Bossier. 381 So.2d 892.

Denied.


text:
    NATIONAL BUILDING & CONTRACTING COMPANY, INC. v. LAFOURCHE PARISH POLICE JURY.
    No. 67452.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Lafourche Parish Police Jury, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. 32nd Judicial District Court, Parish of Terrebonne. 381 So.2d 867.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Thomas E. ADAMS, Jr. v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67415.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Thomas E. Adams, Jr., applying for writ of habeas corpus. Parish of Jefferson. Number unknown.

Denied.


text:
    STATE of Louisiana v. Roger Daniel BRYAN.
    No. 64603.
    Supreme Court of Louisiana.
    June 5, 1980.
   In re Roger Daniel Bryan, applying for motion to remand. Parish of Union. No. 24,618.

Motion denied.

DIXON, C. J., would refer the motion to the merits.


text:
    STATE of Louisiana ex rel. Cleon DUNHURST v. Frank C. BLACKBURN et al. Warden, Louisiana State Penitentiary.
    No. 67670.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Cleon Dunhurst applying for writs of habeas corpus and certiorari. Parish of St. Tammany.

Writ denied.


text:
    STATE of Louisiana ex rel. Willie SPARKS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67582.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Willie Sparks, applying for writ of habeas corpus. Parish of Caddo, 1st Judicial District Court. No. 113,590-HC.

Denied.


text:
    George KUTZGAR v. John M. YARBOROUGH, Jr., M. D.
    No. 67605.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re George Kutzgar, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court. No. 77-17611.

Denied.

LEMMON, J., recused.


text:
    PHARIS & PHARIS v. Mary Elizabeth V. RAYNER.
    No. 67540.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Pharis & Pharis, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. No. 7486.

Granted.


text:
    WHITNEY NATIONAL BANK OF NEW ORLEANS v. Vincent J. DERBES, Gary R. Brown, Herbert B. Christianson, Andrew M. Hegre and Lloyd D. O’Quinn.
    No. 67726.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Lloyd D. O’Quinn, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 79-8183.

Writs denied, reserving to relator all his rights on appeal.

WATSON, J., recused.


text:
    STATE of Louisiana ex rel. Kenneth WHITE v. 19TH JUDICIAL DISTRICT COURT, EAST BATON ROUGE PARISH, DIVISION “H”.
    No. 67620.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Kenneth White, applying for writ of mandamus. Parish of East Baton Rouge. No. 11-78-472.

Granted. Trial court is ordered to furnish relator with his Boykin Transcript.

WATSON, J., would deny the writ.


text:
    STATE of Louisiana ex rel. Alex ELAIRE v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67624.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Alex Elaire, applying for remedial writs. Parish of Avoyelles. No. 41,288.

Granted. Evidentiary hearing ordered to determine whether or not relator waived his right of appeal.


text:
    Martin DESALVO v. Waldon DUFENE, Parker Industries and Claude Ocmand.
    No. 67614.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Martin Desalvo, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson, 24th Judicial District Court. No. 10786.

Denied.


text:
    STATE of Louisiana ex rel. Stanley BRADDY v. STATE of Louisiana.
    No. 67706.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Stanley Braddy, applying for remedial writ. Parish of Orleans, Criminal District Court. No. 266-157.

Writ granted. The trial judge is ordered to act on relator’s motion for an appeal bond.


text:
    In re Clyde D. MERRITT.
    No. 67643.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Clyde D. Merritt, applying for supervisory writs and stay order. Parish of Orleans. No. 257-212.

Granted; the conviction and sentence are reversed.

MARCUS, J., would deny the writ.


text:
    STATE of Louisiana ex rel. Douglas R. LEVERETT v. STATE of Louisiana.
    No. 67584.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Douglas R. Leverett, applying for writs of certiorari, prohibition and mandamus. Parish of St. Mary. No. 90477.

Writ denied.


text:
    Emma Williams FREEMAN et al. v. INSURANCE COMPANY OF NORTH AMERICA, Martin E. Guillory and South Louisiana Contractors, Inc.
    No. 67595.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Insurance Company of North America, Martin E. Guillory and South Louisiana Contractors, Inc., applying for writs of cer-tiorari, prohibition and mandamus. Parish of St. Landry. No. 78,250-2.

Denied.


text:
    Lawrence GEORGE v. Prank BOYLAN et al.
    No. 67604.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Lawrence George applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court. No. 76-9252.

Denied.


text:
    CITY OF BATON ROUGE v. William P. RABORN, Jr.
    No. 67610.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re William P. Raborn, Jr., applying for supervisory writs. Parish of East Baton Rouge. City Court, No. 1-80-304.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana v. Patrick Ray PATTERSON.
    No. 67691.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Patrick Ray Patterson, applying for supervisory writs. Parish of St. Mary. No. 90,480.

Denied.


text:
    Leander H. PEREZ, Jr., District Attorney for the 25th Judicial District Court, Parish of Plaquemines v. PLAQUEMINES PARISH COMMISSION COUNCIL.
    No. 67630.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Plaquemines Parish Commission Council, applying for supervisory writs. Parish of Plaquemines. No. 21-971.

Denied.


text:
    STATE of Louisiana ex rel. Clifford RYAN v. 14TH JUDICIAL DISTRICT COURT, and C. Paul Phelps, Secretary, Louisiana Department of Corrections, et al.
    No. 67633.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Clifford Ryan applying for writ of review. Parish of Calcasieu. No. 4089-73.

Denied.


text:
    STATE of Louisiana ex rel. James Boyd STAFFORD v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67626.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re James Boyd Stafford, applying for remedial writs. Parish of Livingston, 21st Judicial District Court. Nos. 2637, 2638 and 2693.

Writ denied.


text:
    Mrs. Judith Homes JOHNSON v. Norman L. JOHNSON.
    No. 67572.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Mrs. Judith Homes Johnson, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court. 381 So.2d 1317.

Denied.

CALOGERO, J., would grant the writ.


text:
    John C. ARTHURS, Jean C. Felts, Michael J. Rapier, Alvin L. Smith and F. Porche Waguespack v. Ernest N. MORIAL, Individually and as Mayor of the City of New Orleans.
    No. 67570.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re The Chamber/New Orleans, and the River Region, and Norman R. Kerth, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 383 So.2d 444.

Denied.


text:
    Glenn A. ARNOLD v. NEW ORLEANS POLICE DEPARTMENT.
    No. 67569.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re New Orleans Police Department, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 383 So.2d 810.

Denied.


text:
    SCHWEGMANN BROTHERS GIANT SUPER MARKET et al. v. James J. DONELON et al.
    No. 67551.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re James J. Donelon et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 24th Judicial District Court. 383 So.2d 433.

Writ denied.

MARCUS, J., would grant the writ.


text:
    Armand RICHARD v. SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION and St. Paul Fire and Marine Insurance Company.
    No. 67541.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Southwest Louisiana Hospital Association and St. Paul Fire and Marine Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 383 So.2d 83.

Denied.

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


text:
    Laurie BURKE, Derrick Morrison and Joel Aber v. James PARSONS, in his Capacity as Superintendent of the New Orleans Police Department.
    No. 67534.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Laurie Burke and Joel Aber, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 383 So.2d 406.

Writ granted. Judgment of the trial court reinstated.

BLANCHE, J., would deny the writ application.


text:
    Mr. and Mrs. Douglas J. KOOB v. The TRAVELERS INSURANCE COMPANY.
    No. 67573.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Mr. and Mrs. Douglas J. Koob, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 24th Judicial District Court. 382 So.2d 269.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    Ronald JACKSON v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    No. 67637.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re United States Fidelity & Guaranty Company, applying for writs of certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Iberia. 16th Judicial District Court. 382 So.2d 223.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana In the Interest of Donald Ray GIBSON.
    No. 67628.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re State of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of East Carroll. 382 So.2d 1060.

Denied.


text:
    BRIAN INVESTMENTS, LTD. v. ASCANTIA, INC.
    No. 67611.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Brian Investments, Ltd., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. John the Baptist. 381 So.2d 1275.

Writ denied. The result is correct.

LEMMON, J., recused.


text:
    Mrs. Margaret KIBODEAUX and Mr. Gerald Kibodeaux v. JEFFERSON PARISH SCHOOL BOARD.
    No. 67596.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Mrs. Margaret Kibodeaux and Mr. Gerald Kibodeaux, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 24th Judicial District Court. 381 So.2d 1268.

Denied.

LEMMON, J., recused.


text:
    Luke BONURA, Jr. v. COMMERCIAL UNION INSURANCE CO. et al.
    No. 67585.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Luke Bonura, Jr., applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 381 So.2d 1265.

Granted.


text:
    Preston DAVIS v. Robert F. MORROW et al.
    No. 67598.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Preston Davis, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 381 So.2d 1258.

Granted.

LEMMON, J., recused.


text:
    Raymond ALLEN v. Sylvester SMITH, Jr.
    No. 67457.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Raymond Allen, applying for certio-rari, or writ of review to the Court of Appeal, First Circuit. Parish of Terre-bonne. 380 So.2d 174.

Granted.


text:
    Deetta Barber GARRETT et al. v. PIONEER PRODUCTION CORP. et al.
    No. 66968.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Pioneer Production Corp., Terra Resources, Inc., Petrol-Lewis Corp., C F Braun and Co., and the City of Jennings, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Jefferson Davis. 378 So.2d 945.

Granted.

WATSON, J., recused.


text:
    Deetta Barber GARRETT et al. v. PIONEER PRODUCTION CORP. et al.
    No. 66970.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Deetta Barber Garrett et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Jefferson Davis. 378 So.2d 945.

Granted.

WATSON, J., recused.


text:
    STATE of Louisiana v. Shelby J. NEVEAUX.
    No. 67539.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick applying for writ of certiorari and review. Parish of Orleans. No. 273-862.

Denied.

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


text:
    STATE of Louisiana ex rel. Arthur M. DAVIS v. STATE of Louisiana.
    No. 67662.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Arthur M. Davis applying for writ of habeas corpus. Parish of Orleans. No. 183-142.

Writ denied.


text:
    STATE of Louisiana v. Foster MITCHELL.
    No. 67613.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Foster Mitchell, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of DeSoto. No. 39,575.

Denied.


text:
    STATE of Louisiana v. Hosea LANDRENEAU.
    No. 67682.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Hosea Landreneau, applying for writs of certiorari, prohibition and mandamus and stay order. Parish of Orleans, Criminal District Court. No. 276-022.

Denied.


text:
    STATE of Louisiana ex rel. Royal A. EVERY v. Honorable Rudolph F. BECKER, Judge, Criminal District Court Section “E”, Parish of Orleans.
    No. 67190.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Royal A. Every, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 250-228.

Granted. It is hereby ordered that relator be granted an evidentiary hearing to determine if he was present when the sentence was amended on October 6, 1975, or alternatively resentenced. Otherwise the writ is denied.


text:
    STATE of Louisiana ex rel. Ellis A. GUILLOT v. STATE of Louisiana.
    No. 67579.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Ellis A. Guillot, applying for writ of mandamus. Parish of Orleans, Criminal District Court, Section E. No. 262-375.

Denied.


text:
    STATE of Louisiana v. Joseph WESTON.
    No. 67559.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Joseph Weston, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Vermilion. No. 21,-439.

Denied. Adequate review in event of conviction.


text:
    STATE of Louisiana ex rel. Gilbert FRANKLIN v. STATE of Louisiana.
    No. 67705.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Gilbert Franklin, applying for writ of mandamus. Parish of East Baton Rouge, 19th Judicial District Court.

Granted in part, denied in part. Action on the motion for bond ordered; otherwise, denied.


text:
    STATE of Louisiana v. Karliss DAVIS.
    No. 67636.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re State of Louisiana, applying for certiorari, prohibition, and mandamus. Parish of Jefferson Davis, 31st Judicial District Court No. 937-80.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Clarence Louis CURTIS, Jr. v. Frank C. BLACKBURN, Warden, State of Louisiana Penitentiary.
    No. 67571.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Clarence Louis Curtis, Jr., applying for habeas corpus, and forma pauperis. Parish of East Baton Rouge, 19th Judicial District Court. No. 7-74-2639.

Denied.


text:
    STATE of Louisiana ex rel. Scott Allen THORNE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67561.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Scott Allen Thorne, applying for remedial writs. Parish of St. Mary, 16th Judicial District Court.

Writ denied.


text:
    Leander H. PEREZ, Jr. et al. v. PLAQUEMINES PARISH COMMISSION COUNCIL et al.
    No. 67546.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Plaquemines Parish Commission Council et al., applying for remedial writs. Parish of Plaquemines, 25th Judicial District Court. No. 22-013.

Denied. In view of the May 13 ruling of the Court of Appeal in which it is stated that it will consider a request for an expedited hearing, the writ is denied.

BLANCHE, J., would grant the writ.


text:
    Jon J. DAVIS v. Ernest and Opal MOREAU and Allstate Insurance Company.
    No. 67581.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Jon J. Davis, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson, 24th Judicial District Court. No. 207-325.

Denied.


text:
    STATE of Louisiana ex rel. McArthur JOHNSON v. STATE of Louisiana.
    No. 67707.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re McArthur Johnson, applying for remedial writ. Parish of Bossier, 26th Judicial District Court. No. 66-465.

Denied.


text:
    STATE of Louisiana v. Willard HEBERT, Trudy Guillot, Donald Ricaud and Lisa Ritchie.
    No. 67638.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Willard Hebert and Trudy Guillot, applying for writ of certiorari. Parish of East Baton Rouge, 19th Judicial District Court. No. 6-79-152.

Denied.


text:
    STATE of Louisiana ex rel. James Melvin LEWIS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67619.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re James Melvin Lewis, applying for writ of habeas corpus. Parish of Claiborne, 2nd Judicial District Court. Nos. 10,420 and 10,421.

Writ denied.


text:
    STATE of Louisiana v. William Gary COOPER.
    No. 67774.
    Supreme Court of Louisiana.
    June 9, 1980.
   In re State of Louisiana through the District Attorney, W. Gregory Arnette, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson Davis. No. CR-1527-79.

Writ denied.


text:
    State in the Interest of Brent Vail Joseph BRUNO.
    No. 67771.
    Supreme Court of Louisiana.
    June 9, 1980.
   In re Brent Vail Joseph Bruno, applying for supervisory and remedial writs, and stay order. Parish of St. Tammany. No. 210 JJ.

Stay order granted until further orders of this Court.


text:
    WHITNEY NATIONAL BANK OF NEW ORLEANS v. Vincent J. DERBES, Gary R. Brown, Hebert B. Christianson, Andrew M. Hegre & Lloyd D. O’Quinn.
    No. 67801.
    Supreme Court of Louisiana.
    June 11, 1980.
   In re Lloyd D. O’Quinn, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans Civil District Court, Division I. No. 79-8183.

Denied.

WATSON, J., recused.


text:
    STATE of Louisiana v. Allen HAMMLER.
    No. 67773.
    Supreme Court of Louisiana.
    June 11, 1980.
   In re Allen Hammier, applying for writ of certiorari and remedial relief. Parish of Orleans. No. 276-400.

Granted. Preliminary examination ordered.


text:
    STATE of Louisiana v. Gilbert WILLIAMS.
    No. 67805.
    Supreme Court of Louisiana.
    June 11, 1980.
   In re Gilbert Williams, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. . No. 275-049.

Writ denied. Adequate remedy by appeal in event of conviction.


text:
    STATE of Louisiana v. Doyle Max QUIMBY.
    No. 67780.
    Supreme Court of Louisiana.
    June 12, 1980.
   In re Doyle Max Quimby, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caldwell. Nos. 19,182 and 19,183.

Granted. Bond reduced to $37,500.00.

BLANCHE and WATSON, JJ., would deny the writ.


text:
    STATE of Louisiana v. Edward BUTLER.
    No. 67794.
    Supreme Court of Louisiana.
    June 12, 1980.
   In re Edward Butler, applying for writs of certiorari, prohibition, mandamus. Parish of Tangipahoa. No. 44,350.

Denied.


text:
    Eric McANELLY v. TANO CORPORATION.
    No. 67607.
    Supreme Court of Louisiana.
    June 12, 1980.
   In re Eric McAnelly, applying for reconsideration of granted writ of May 30, 1980. Parish of Orleans. No. 79-16375.

Rehearing denied.

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


text:
    STATE of Louisiana ex rel. Edward Lee WALSTON v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 67618.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Edward Lee Walston applying for writ of certiorari. Parish of Terrebonne.

Denied.


text:
    STATE of Louisiana ex rel. Louis SPOONER v. Warden Roger AUCOIN.
    No. 67693.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Louis Spooner, applying for writ of habeas corpus. Parish of East Baton Rouge.

Granted. Remanded to the trial court for action.


text:
    STATE of Louisiana ex rel. James WILKENS v. STATE of Louisiana.
    No. 67678.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re James Wilkens, applying for Remedial Writs. Parish of Orleans.

Denied.


text:
    Grady HARRIS v. Vol DOOLEY, Sheriff.
    No. 67588.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Grady Harris, applying for habeas corpus. Parish of Bossier, 26th Judicial District Court.

Denied.


text:
    STATE of Louisiana ex rel. Billy R. AUSTIN v. Frank BLACKBURN, Warden.
    No. 67593.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Billy R. Austin, applying for supervisory (remedial) writs. Parish of West Fe-liciana. No. 6870.

Denied.


text:
    STATE of Louisiana ex rel. Alex NOLAN v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67473.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Alex Nolan, applying for writs of habeas corpus, and certiorari. Parish of East Baton Rouge. No. 7-78-223.

Denied.


text:
    STATE of Louisiana ex rel. Tim WELLER v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67587.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Tim Weller, applying for writ of mandamus. Parish of Terrebonne. Nos. 21,835-21,837.

Denied.


text:
    STATE of Louisiana v. Terry L. McLEMORE.
    No. 67697.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Terry L. McLemore applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 79-2280.

Granted. Sentence vacated and case remanded for sentencing in accord with La.C. Cr.P. Art. 894.1.


text:
    STATE of Louisiana ex rel. Arthur HILLS v. Edwin LOMBARD, Clerk of Court, Orleans Criminal District Court.
    No. 67623.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Arthur Hills, applying for writ of mandamus. Parish of Orleans. No. 264-957.

Denied.


text:
    STATE of Louisiana ex rel. William HANKINS v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 66944.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re William Hankins applying for writ of mandamus. Parish of Orleans. Nos. 208-926 and 215-589.

Granted. District Court is ordered to act and grant the relator the Boykin transcript in 215-589 (§ D) and 208-926 (§ D).


text:
    STATE of Louisiana v. Ferley (Ferdy) PATTERSON.
    No. 66003.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Ferley Patterson, applying for writs of certiorari, prohibition and mandamus. Parish of Ascension. Nos. 21,784 and 21,-785.

Denied.


text:
    CITY OF NEW ORLEANS ex rel. Thomas MARRERITTY v. Municipal Court Judge Eddie SAPIR, City of New Orleans, et al.
    No. 66138.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Thomas Marreritty, applying for writ of habeas corpus. Parish of Orleans, Municipal Court. Number unknown.

Writ denied. There is no record that relator has filed in either the city court or district court.


text:
    STATE of Louisiana ex rel. Nobert CAMP v. Honorable Charles WARD, Judge, Orleans Criminal Judicial District Court.
    No. 66243.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Nobert Camp, applying for writs of certiorari and mandamus. Parish of Orleans. No. 238-621.

Denied.


text:
    STATE of Louisiana ex rel. Horace Bartholemew PIERSON v. Honorable Frank J. SHEA, Judge, Criminal District Court, Section “G”, Parish of Orleans.
    No. 66821.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Horace Bartholemew Pierson, applying for writ of mandamus. Orleans Parish. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. Joseph SIEGEL v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66957.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Joseph Siegel applying for remedial writs. Parish of East Baton Rouge. No. 1-74-8052B.

Denied.


text:
    STATE of Louisiana ex rel. Wellams DAVIS v. Judge Frank SHEA, Orleans Criminal Judicial District Court.
    No. 66967.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Wellams Davis, applying for writ of mandamus. Parish of Orleans. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. David STEVENSON, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary et al.
    No. 67654.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re David Stevenson, Jr. applying for motion to proceed in forma pauperis and writ of mandamus. Parish of Caddo. No. 102-613.

Denied as moot.


text:
    STATE of Louisiana ex rel. Milton GREEN, II v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67656.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Milton Green, II applying for writs of certiorari and mandamus. Parish of La-fourche. No. 68,167.

Denied.


text:
    STATE of Louisiana ex rel. Merlin M. RENARD, Jr. v. Judge Frank SHEA, Orleans Parish Criminal District Court.
    No. 67622.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Merlin M. Renard, Jr., applying for writ of mandamus. Parish of Orleans. No. 264-958.

Denied.


text:
    The SUCCESSION of Laura McCloskey CLEMENT.
    No. 67686.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re John Hagerty, applying for remedial writ. Parish of Orleans, Civil District Court, Division I. No. 78-5065.

Denied.


text:
    STATE of Louisiana v. Marshall Q. COCO.
    No. 67687.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Marshall Q. Coco, applying for remedial writs. Parish of East Baton Rouge. No. 1-80-687.

Denied.


text:
    Jean Marie LONDON, Natural Tutrix of the Minor Child, David Wayne Holliday v. Jack HOLLIDAY.
    No. 67690.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Jack Holliday, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13,172.

Denied. The result is correct.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. William Claude WIGGINS.
    No. 67701.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re William Claude Wiggins, applying for writs of certiorari. Parish of Ouachita. No. 39,414.

Denied.


text:
    STATE of Louisiana ex rel. Richard TRASS v. Charles FOTI, Criminal Sheriff, Parish of Orleans, State of Louisiana.
    No. 67062.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Richard Trass, applying for writ of habeas corpus. Parish of Orleans. No. 246-173.

Writ denied.

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


text:
    STATE of Louisiana ex rel. Marshall CRAFT v. Warden BLACKBURN, Louisiana State Penitentiary.
    No. 67092.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Marshall Craft, applying for writ of habeas corpus. Parish of Orleans. No. 264-255.

Denied.


text:
    STATE of Louisiana ex rel. Jerry RUPE v. COURT REPORTER, ORLEANS PARISH CRIMINAL DISTRICT COURT.
    No. 66915.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Jerry Rupe, applying for writ of mandamus. Parish of Orleans. No. 263-785.

Granted. The District Court is ordered to act on relator’s action.


text:
    STATE of Louisiana ex rel. Irvin SCOTT v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67583.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Irvin Scott, applying for remedial writs. Parish of Orleans. No. 260-736.

Granted. The District Court is ordered to act on relator’s application.


text:
    STATE of Louisiana v. Kenneth OGDEN and Benjamin Geraghty.
    No. 67608.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re State of Louisiana, applying for certiorari and remedial writs. Parish of Orleans, Criminal District Court, Section D. No. 275-639.

Granted.


text:
    STATE of Louisiana ex rel. Michael COMERY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66945.
    Supreme Court, of Louisiana.
    June 13, 1980.
   In re Michael Comery applying for remedial writs. Parish of Ascension. No. 25,-288.

Granted. Evidentiary hearing ordered to determine whether or not relator waived his right of appeal.


text:
    STATE of Louisiana ex rel. Joe VINCENT v. STATE of Louisiana.
    No. 67351.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Joe Vincent applying for remedial writs. Parish of Orleans, Section “E”. No. 166-390.

Relator’s request to withdraw application is granted.


text:
    STATE of Louisiana ex rel. Danny WELCH v. Judge Bernard J. BAGERT, Sr., Orleans Criminal Judicial District Court.
    No. 67621.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Danny Welch, applying for writ of mandamus. Parish of Orleans. No. 257-211.

Relator’s motion to dismiss the application is granted.


text:
    STATE of Louisiana v. Henry F. DAVIS.
    No. 67668.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re State of Louisiana, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans, Criminal District Court, Section B. No. 275-339.

Granted.


text:
    Lawrence J. HENLEY, Jr. v. F. G. SULLIVAN, JR., CONTRACTOR, INC. et al.
    No. 67717.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Lawrence J. Henley, Jr., applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13,263.

Granted.


text:
    STATE of Louisiana v. Bernard ABADIE and Frankie Schielder.
    No. 67723.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re State of Louisiana, through the District Attorney Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 275-593.

Writ granted.


text:
    STATE of Louisiana ex rel. Tookie DAVALIE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67078.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Tookie Davalie applying for reconsideration of denied writ on May 19, 1980. Parish of Orleans. No. 235-759.

Motion denied.


text:
    Martin PARFAIT v. Robert DEROCHE et al.
    No. 67695.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Martin Parfait, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. No. 13,293.

Denied.


text:
    Delia W. VILLALTA v. Orlando VILLALTA.
    No. 67708.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Orlando Villalta, applying for writs of prohibition, certiorari and stay order. Parish of Jefferson. No. 237-650.

Denied.


text:
    Robert CLEMENT v. Don TAYLOR et al.
    No. 67664.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re John Marcus Cruse and Syble Cruse, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette, 15th Judicial District Court. No. 69726.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Terrell STERLING.
    No. 67842.
    Supreme Court of Louisiana.
    June 17, 1980.
   In re Terrell Sterling, applying for additional time within which to file supervisory writs. Parish of Orleans. No. 274-213.

Granted. Relator’s time to file for supervisory writs in this Court is extended to June 23, 1980 at 5 p. m.


text:
    STATE of Louisiana v. Antoinette LEWIS.
    No. 67828.
    Supreme Court of Louisiana.
    June 17, 1980.
   In re Antoinette Lewis, applying for writs of certiorari, mandamus, and stay order. Parish of Orleans. No. M-99546.

Granted. Trial judge ordered to hold preliminary examination on or before June 19, 1980 prior to the time the matter is brought before the grand jury.


text:
    STATE of Louisiana v. Joe Edward WILLIAMS.
    No. 80-K-1378.
    Supreme Court of Louisiana.
    June 19, 1980.
   In re Joe Edward Williams, applying for writ of review, prohibition and stay order. Parish of Ouachita. No. 38,241.

Denied. The defendant is not entitled to be released from custody at this time; the trial judge is ordered to hold forthwith the hearing ordered by this Court on May 30, 1980.


author: PONDER, Judge. PER CURIAM.

text:
    Elmo A. ALTAZAN, Jr. v. PONTCHARTRAIN DREDGING CORPORATION and Louisiana Materials Co., Inc.
    No. 13003.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    On Rehearing May 5, 1980.
    Thomas H. Benton, Benton, Benton & Benton, Baton Rouge, for plaintiff, appel-lee.
    John J. Broders, Warren M. Schultz, Jr., New Orleans, for defendant, appellant, Pontchartrain Dredging Corp.
    Neal D. Hobson, Joseph W. Looney, New Orleans, for defendant, appellant, Louisiana Materials Co., Inc.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendants appealed from a judgment awarding damages for destruction of crab traps by dredges.

The issues are the liability of the defendants and the amount of damages.

We amend and affirm.

Plaintiff purchased 200 crab traps in place in Lake Pontchartrain and fished these traps on an almost daily basis. On October 10, 1976 plaintiff noted a dredge belonging to defendant, Pontchartrain Dredging Corporation, operating in the area of his traps. After the dredge left, plaintiff counted his traps and found 54 of them missing.

On November 1, 1976, plaintiff came upon two dredges belonging to defendant, Louisiana Materials Company, in the middle of his traps. Plaintiff discovered 96 more of his remaining traps missing afterwards.

The pivotal issues in this case are credibility of the witnesses and sufficiency of the evidence.

Defendants tried to prove that the dredges could not have sucked up the traps because there was no down time recorded in the log books for removal of traps from the dredges’ machinery. However, the trial court judge found that the traps could have been destroyed by the dredges in other ways. For example, the dredges could have hit the traps or moved them out of line.

The trial court also found that the traps were adequately marked by large orange floats and that the defendants were negligent in causing the traps to be lost. We find no manifest error in this decision.

The trial court awarded damages based on the cost of the traps and the estimated loss of revenue from the time of the loss until November 13. The court disallowed any losses after that date since plaintiff did not crab.

The doctrine of mitigation of damages applies in Louisiana in both contract and tort. See Dupre v. Tri-Parish Flying Serv., Inc., La.App., 355 So.2d 554 (3rd Cir. 1978) and the cases cited therein. Therefore we find that the trial court was in error in granting damages for the entire time period plaintiff was without the traps. We feel plaintiff could have replaced the traps within seven days. We grant plaintiff damages for the loss of profits over seven days.

We also find the trial court in error in granting damages for two crabs per trap per day. The plaintiff himself testified that he caught 1.8 crabs per trap per day, and we therefore grant an award based upon that figure.

We award damages against Pontchartrain Dredging Corporation in the amount of $567.68 plus interest from date of judicial demand. That figure is comprised of $270.00 for loss of 54 traps, $170.10 for loss of income from the sale of soft shell crabs, and $127.58 for loss of income from the sale of hard shell crabs.

We award damages against Louisiana Materials for $1,027.20 plus interest from date of judicial demand. That amount includes $480.00 for the loss of 96 traps, $320.40 for the loss of income from the sale of soft shell crabs, and $226.80 for the loss of income from the sale of hard shell crabs.

For the above reasons the judgment of the trial court is amended and affirmed. The costs of this appeal are assessed to the appellee.

AMENDED AND AFFIRMED.

ON REHEARING

PER CURIAM.

We granted a rehearing for the purpose of examining the assessment of costs.

After reconsidering this question we believe that the costs should be assessed against the appellants, since the judgment of the trial court on liability was affirmed, and the amounts amended only.

For these reasons we amend the prior decision herein by assessing the costs against the appellants. In all other respects the judgment is reinstated.

AMENDED AND REINSTATED.


author: PONDER, Judge.

text:
    John Prewitt NELSON v. Sally STAFFORD.
    No. 13373.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 1980.

      Bert K. Robinson, Baton Rouge, for plaintiff-appellee John Prewitt Nelson, Jr.
    John B. Noland and Donna W. Lee, Baton Rouge, for defendant-appellant Sally Stafford.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendant appellee moves the court to dismiss the appeal of plaintiff appellant on the grounds that a suspensive appeal was granted and no bond has been timely filed.

Plaintiff is proceeding in forma pau-peris and as such is entitled to litigate without payment of costs in advance or as they accrue. However, plaintiff is entitled only to a devolutive appeal. There is no suspen-sive appeal in forma pauperis. Therefore, plaintiff’s suspensive appeal must be dismissed.

Although the suspensive appeal is dismissed, the appeal remains as devolutive. Allstate Ins. Co. v. La. Gas Service Co., 340 So.2d 698 (La.App. 4th Cir. 1976). The order erroneously granting the suspensive appeal in forma pauperis was signed within the delay allowed for a devolutive appeal and the appeal stands as devolutive notwithstanding the fact that the order for appeal did not mention a devolutive appeal. Ferina v. Howard, 285 So.2d 805 (La.App. 3rd Cir. 1973).

SUSPENSIVE APPEAL DISMISSED. APPEAL MAINTAINED AS DEVOLU-TIVE.

      . La.C.C.P. Art. 5185:
      “When an order of court permits a party to litigate without the payment of costs, until this order is rescinded, he is entitled to:
      * * * Hi * *
      “(4) The right to a devolutive appeal, and to apply for supervisory writs. He is not entitled to a suspensive appeal, . . .”


author: CHIASSON, Judge:

text:
    John Prewitt NELSON, Jr. v. Mrs. Sally STAFFORD.
    No. 13373.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Bert K. Robinson, Baton Rouge, for plaintiff-appellee John Prewitt Nelson, Jr.
    James D. McNeill, New Orleans, for defendant-appellant Sally Stafford.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge:

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court EX PROPRIO MOTU, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: ELLIS, Judge:

text:
    Eula Marie GUIDRY v. Conrad SERIGNY d/b/a Leeville Seafood Restaurant and Lounge.
    No. 12413.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      Steven M. Koenig, New Orleans, for petitioner and appellant.
    George Ledet, Jr., Cut Off, for defendant and appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This case is before us for the second time, on remand from the Supreme Court for a fixing of the workmen’s compensation benefits to which plaintiff, Mrs. Eula Marie Guidry, may be entitled. See Guidry v. Serigny, 378 So.2d 938 (La.1979). In our first opinion in this matter, 370 So.2d 904 (La.App. 1st Cir. 1979), we summarized the facts pertinent to this opinion as follows:

“Mrs. Guidry was employed as a cook by Conrad Serigny, who was the owner and operator of Leeville Seafood Restaurant and Lounge. On the morning of December 2, 1975, she fell, either because she fainted or had a heart attack or because she slipped on a wet or slick floor. At the trial, Mrs. Guidry testified that she slipped because the floor was newly waxed. The histories taken by various doctors in the case furnish the other versions of how the accident happened.
“After the accident, she was unconscious, and was taken by ambulance to Our Lady of the Sea Hospital in Galliano, Louisiana, where she was seen in the emergency room by Dr. William Maroma, who, at that time, specialized in internal medicine and cardiology, although not board certified. His diagnosis was heart failure and syncope. A Dr. George also examined plaintiff because of complaints of back pain, and diagnosed a mild low back strain or sprain.
“Dr. Maroma based his diagnosis, in part, on a history that Mrs. Guidry had suffered from heart disease in the past and was taking Digoxin for her heart. Dr. Maroma did not recall from whom he had obtained the history. Mrs. Guidry denied any history of heart disease, and stated that she had never been given medication for a heart condition. She testified that she had taken nitroglycerin for shortness of breath following a gallbladder operation. No direct evidence of a previous heart condition is in the record, and none of the other doctors who subsequently examined Mrs. Guidry found any abnormality relating to her heart or its function. Dr. Maroma had not seen Mrs. Gui-dry since her discharge from the hospital on December 5, 1975, and was unable to venture an opinion as to any disability arising from her heart condition.
“We think it clear from the record that Mrs. Guidry has failed to prove by a preponderance of the evidence that she is disabled because of a heart condition. No one, including Dr. Maroma, testified to that effect.
“It is equally clear that plaintiff injured her back, and was, for a time, disabled as a result thereof. . . . ”

We adhere to our finding that Mrs. Guidry has not shown that she is disabled because of a heart condition. The only question presented is the extent of her disability resulting from the back injury.

As a result of her fall, Mrs. Guidry suffered a concussion, a mild cervical strain and a herniated disc at the L4-L5 level. She was treated conservatively by Dr. William Maroma and Dr. Russell Rawls. Eventually she was seen by Dr. Kenneth E. Vogel, a neurosurgeon, who tried further conservative treatment without success. On May 30, 1976, he hospitalized Mrs. Gui-dry, and shortly thereafter, performed a lumbar laminectomy.

On July 8, 1976, she was recovering uneventfully. Dr. Vogel saw Mrs. Guidry again on August 7, 1976, following a fall in a supermarket. He found that the fall resulted only in bruises and contusions and had minimal effect on her overall condition. He last saw her on October 12, 1976, at which time she had mild lumbosacral aching. He gave her instructions and told her to return if she had further problems. She did not return. Dr. Vogel estimated a 10 to 15 percent permanent partial medical impairment as a result of the disc operation. He restricted her activities to lifting, pushing or pulling no more than 35 pounds, and told her to avoid bending repeatedly.

Mrs. Guidry testified that she had attempted to return to work a few weeks after the accident, but found it too painful, and had to quit. She stated that, as of the time of trial in late 1977, she was unable to do anything except cook for her family and do light housework, such as putting clothes in the washer and dryer. She denied any other activities. She also testified that she had broken her hip when she fell in the supermarket, and had received an insurance settlement covering all of her medical and travelling expenses in connection therewith. Mrs. Guidry also testified that in her work, she was required to carry heavy sacks and cans of garbage and to lift heavy pots.

Mrs. Guidry’s testimony is rebutted in a number of respects. Dr. Vogel stated that in the supermarket fall, Mrs. Guidry suffered only bruises and contusions, whereas Mrs. Guidry stated that she broke her hip. A number of witnesses testified that they saw Mrs. Guidry perform activities such as washing cars, lifting a washtub from a boat, “rubbing” the front of her. house, sweeping cobwebs from the front of her house, mopping the floors, and mowing the lawn. Mrs. Guidry denied all of these activities. Mr. Serigny testified that he did all of the heavy lifting in the restaurant, and that Mrs. Guidry’s duties were restricted to cooking. He stated that the pots stayed on the stove while in use, and that she was not required to lift them.

Considering the evident inconsistencies in Mrs. Guidry’s testimony, we find that her job as a cook did not involve lifting, pulling or pushing weights of more than 35 pounds, or frequent bending. In the light of Dr. Vogel’s testimony as to her disability, we find that she was no longer disabled to perform her duties as a cook after October 12, 1976. She is, however, entitled to benefits between the date of the accident and October 12, 1976, when she was discharged by Dr. Vogel.

At the time of the accident plaintiff was entitled by law to 66%% of her wages for the period of her disability, not to exceed $85.00 per week. R.S. 23:1202, 23:1221. Mrs. Guidry and Mr. Serigny both testified that she was paid $2.25 per hour. However, Mrs. Guidry said that she worked eight hours per day for six days per week. Mr. Serigny testified that Mrs. Guidry started to work on Monday, and worked until she had 40 hours. He further stated that she would work six or seven days per week. We think Mrs. Guidry’s testimony to be the more reasonable, absent the production of employment records. Mrs. Guidry is therefore entitled to $72.00 per week from December 2, 1975, until October 12, 1976.

We do not find that Mrs. Guidry can collect penalties and attorney’s fees, since there was a substantial legal question as to her entitlement to compensation benefits.

Accordingly, there will be judgment in favor of plaintiff and against defendant, awarding her workmen’s compensation benefits at the rate of $72.00 per week from December 2, 1975, until October 12, 1976, with legal interest in each installment from its due date until paid in full. There will also be judgment for all medical expenses incurred by plaintiff as a result of the accident, specifically excluding, however, those attributable to the fall in August, 1976. All costs shall be paid by defendant.