text:
    David A. NORD, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-490.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.
    David A. Nord, pro se, for appellant.
    No appearance for appellee.
   LARRY G. SMITH, Judge.

We find no merit in appellant’s appeal from establishment of his PPRD in which he challenges the validity of the Commission’s Rule 23-21.11(3), Florida Administrative Code, which provides for the “aggregation” of offenses, in computing the PPRD, where the inmate is currently serving a commitment imposed prior to his present commitment.

While still serving his sentence for conviction of carrying a concealed firearm, appellant was convicted of several offenses (carrying a concealed weapon, resisting an officer with violence, battery on a law enforcement officer, grand theft and petty theft) for which he received concurrent sentences (five years being the longest), and subsequently was also convicted for escape, receiving a one year consecutive sentence. He argues that the Commission’s aggregation rule above referred to violates the legislative intent of Section 947.165(1), Florida Statutes (1981), which provides that factors used in arriving at the salient factor score and the severity of offense behavior category shall not be applied as aggravating circumstances. Appellant points out that for the offense, the sentence for which he was serving when the subsequent convictions occurred, he received one salient factor point which resulted in a matrix time range of 12 to 20 months. However, when the Commission aggregated his subsequent offense of battery on a police officer, his salient factor score jumped to five for a matrix time range of 26-32 months. Likewise, his escape conviction, when aggregated, resulted in a computed salient factor score of six, which placed him in the 32-48 month range. These time ranges, added together, yielded 78 months, which resulted in a PPRD of February 12, 1985.

Appellant’s contention that the aggregation rule is in violation of the statute overlooks the fact that under subsection (1) of Section 947.165, the Commission is given broad authority to develop and implement objective parole guidelines, the only requirement being that the guidelines “shall be developed according to an acceptable research method and shall be based on the seriousness of offense and the likelihood of favorable parole outcome.” “Salient factor score” is not defined by statute, but is a term itself left for definition by the Commission. The Commission’s Rule 23-21.-02(38) defines the term as follows: “Salient Factors are the indices of the offender’s present and prior criminal behavior and related factors found by experience to be predictive in regard to parole outcome.” (emphasis supplied)

We find no prohibition in the statute against the use of each conviction in determining the salient factor score, as defined by the Commission, and the aggregation of the matrix time ranges for the several offenses. The fact that the Commission’s rules may permit the Commission to arrive at a poorer parole prognosis for an inmate sentenced for a new offense or offenses while serving a sentence, than for one whose sentences for prior derelictions have already been completed before being committed on a new sentence or sentences, is a matter peculiarly within the expertise and discretion of the Commission.

Although we have accepted jurisdiction to review appellant’s challenge to the validity of the Commission’s aggregation rule, and found it valid, our decision should not be interpreted as any indication that we will so treat every claim of rule invalidity. We undertook review in this case because the challenge to the rule involved essentially a matter of law to be determined by the ordinary rules of statutory construction. When the challenge to a rule implicates the Commission’s exercise of its discretion in matters requiring its special knowledge, experience and services to determine technical and intricate matters of fact, or a uniformity of ruling is essential to comply with the purposes of the statute being administered, we will require prior resort to the Commission via Section 120.54, or 120.56.

The order appealed is AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and WENTWORTH, J., concur.

      . In Comer v. Florida Parole and Probation Commission, 388 So.2d 1341 (Fla. 1st DCA 1980), we declined to review a similar rule challenge on the ground that there was no showing of exhaustion of administrative remedies. However it should be noted that the Comer case reached us by way of petition for habeas corpus, rather than appeal. In the context of appeal proceedings, such as in the present case, we observe also that Section 120.-56(5) specifically provides that failure to proceed under Section 120.56 shall not constitute failure to exhaust administrative remedies. To the same effect, see Section 120.54(4)(d). See, also, Postal Colony Co., Inc. v. Askew, 348 So.2d 338 (Fla. 1st DCA 1977), affirmed 372 So.2d 913 (Fla.1978). But, cf. Bowling v. Florida Department of Corrections, 389 So.2d 1031 (Fla. 1st DCA 1980), and Douglas v. Florida Department of Corrections, 388 So.2d 587 (Fla. 1st DCA 1980), in which this court dismissed inmate appeals because in each instance the inmate neglected a clear point of entry to a rule challenge pursuant to Section 120.56. As pointed out in the opinion on motion for rehearing and clarification in Bowling the result in both cases was dictated by the fact that neither Bowling nor Douglas was a party to a Section 120.57 proceeding in which the invalidity of a rule was asserted, although, as Bowling further makes clear, if either had been such parties, then they would have had standing to appeal notwithstanding neglect of a clear point of entry under Section 120.56. However, Bowling and Douglas were decided before Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), holding that proceedings for the establishment of a presumptive parole release date were governed by Chapter 120, Administrative Procedures Act, notwithstanding denial of inmate access to the Section 120.57 hearing process. Bowling and Douglas would therefore be inapplicable in appeals from PPRD determinations.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jimmy L. TUCKER, Appellant, v. FLORIDA PAROLE & PROBATION COMMISSION, Appellee.
    No. 81-635.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1982.
    Jimmy L. Tucker, pro se.
    No appearance for appellee.
   PER CURIAM.

The petitioner’s request for a writ of habeas corpus was denied by the circuit court, which held that it had no jurisdiction over the Florida Parole and Probation Commission’s determination of his release date. However, according to our decision in Lowe v. Florida Parole & Probation Comm’n, 416 So.2d 470 (Fla. 2d DCA Apr. 30, 1982), the circuit court did have jurisdiction to review the commission’s action and provide relief if the prisoner demonstrated entitlement thereto.

We therefore reverse and remand for an appropriate determination, pursuant to Lowe.

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


author: RYDER, Judge.

text:
    John MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1474.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1982.

      John Mathis, pro se.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

We affirm appellant’s convictions and sentences for first degree burglary and involuntary sexual battery, finding no merit to seven of appellant’s eight points on appeal. However, as to the appellant’s final contention, we agree with appellant that the trial judge erred in retaining jurisdiction over the first one-third of appellant’s sentences as the trial court failed to state the justification as required by the statute.

A trial judge is allowed to retain jurisdiction over the first one-third of a defendant’s sentence upon conviction of burglary of a dwelling in which a human being is present and/or sexual battery. § 947.16(3), Florida Statutes (1981). However, in retaining jurisdiction, the trial judge is required to state with individual particularity justification for such retention on the record. § 947.16(3)(a), Florida Statutes (1981).

In the instant case, the trial judge was statutorily entitled to retain jurisdiction over the appellant, provided that he stated with individual particularity the justification upon which the retention was based. Here, the justification is absent from the record so the trial judge was not legally empowered to retain jurisdiction over one-third of appellant’s sentences. LaChance v. State, 396 So.2d 1234 (Fla. 2d DCA 1981).

Accordingly, the judgments and sentences of appellant are AFFIRMED. However, the orders of retention over the first one-third of appellant’s sentences are vacated and the cause is REMANDED with directions that if the trial judge wishes to retain jurisdiction over one-third of appellant’s sentences, he may state on the record the justification, with individual particularity, as is required by section 947.16(3)(a), Florida Statutes (1981).

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


author: RYDER, Acting Chief Judge.

text:
    Sherman LEA, Appellant, v. Gary SUHL and Alvin Collins, Appellees.
    No. 81-1941.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1982.

      Charles D. Waller of Waller & Hersch, Dade City, for appellant.
    John B. Liebman of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Orlando, for appellees.
   RYDER, Acting Chief Judge.

Lea appeals from a judgment denying him recovery for default on a promissory note and granting damages on appellees’ counterclaim for $3,409.75. We reverse.

Appellant Lea sued appellees Suhl and Collins, alleging default on a promissory note. Appellees asserted failure of consideration and counterclaimed for defective goods. Although no record was made of the proceedings below, the parties reconstructed the following facts pursuant to Florida Rule of Appellate Procedure 9.200(b)(3).

Lea testified that Gaseo Corporation sold silage to Suhl’s Dairy for an agreed price of $10,054.95. Lea testified that he was a creditor of Gaseo, and Gaseo assigned the Suhl’s Dairy account to him in part satisfaction of its debt to Lea. Lea also testified that, subsequent to the assignment, he had negotiations with Suhl, general manager of Suhl’s Dairy, and its accountant, appellee Collins, and as a result of those negotiations, Suhl and Collins agreed to sign a promissory note individually in return for Lea!s promise not to sue the dairy for the amount due. Lea testified he had been paid $900.00 on the note.

Suhl testified that the dairy did receive the amount of silage for which the corporation was billed. He and Collins testified that they signed the note for the bill. Suhl further testified that 172 tons of the silage was defective and was worth $14.00 less than the agreed upon price of $22.00 per ton.

The court entered an order that appellant take nothing and that the appellees take $3,409.75 on their counterclaim.

We regret that the parties below did not elect to have the proceedings reported so that the record could be examined on appeal. We think that if a matter is important enough to the parties to necessitate the expense of litigation, it should also be important enough to expend funds for the presence of a court reporter. Such a record would prove valuable upon appeal.

However, the sparse record before us does contain competent substantial evidence to support the fact that appellees assumed the debt and signed the note in return for the forebearance of Lea to sue the dairy. Such was the “testimony” of Lea, and nothing in the “testimony” of ap-pellees is contradictory. Forebearance to sue is sufficient consideration for a note. Alpha Electric Supply, Inc. v. Drake Contracting, Inc., 407 So.2d 363 (Fla. 5th DCA 1981); Uwanawich v. Gaudini, 334 So.2d 116 (Fla. 3d DCA), cert. denied, 341 So.2d 1086 (1976); City of Valpariso v. Long, 141 So.2d 334 (Fla. 1st DCA 1962). Additional ly, appellees gave the note in payment of the dairy’s antecedent obligation, rendering consideration unnecessary. Frank v. Intercontinental Bank of Miami Beach, 372 So.2d 543 (Fla. 3d DCA 1979). § 673.408, Florida Statutes (1979). We find no evidence in the record before us to support the lower court’s order denying recovery and we thus reverse the order.

There is, likewise, no evidence to support the award of appellees’ counterclaim of $3,409.75. The stipulated facts state that appellees made payments of $900.00 on the note. The uncontradicted testimony of Suhl also noted that 172 tons of the silage was defective, with a value of $22.00 less $14.00 per ton. The counterclaim thus only sought damages of $2,408.00 for defective silage. We hold that the facts support an award to appellees of $900.00 in payments made and $2,408.00 on a counterclaim, both to be set off from the face amount of the note.

The order below is REVERSED and the case REMANDED for entry of judgment for appellant on the note with a set-off for appellees of $3,308.00.

DANAHY and SCHOONOVER, JJ., concur.


author: DOWNEY, Judge.

text:
    In the Interest of G. B. S., a child.
    No. 81-2264.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Richard L. Jorandby, Public Defender, and Marcy Allen, Asst. Public Defender, West Palm Beach, for appellant-child.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee-State.
   DOWNEY, Judge.

This case involves a garden variety purse snatching. Appellant and another juvenile were charged under the theft statute with snatching a victim’s purse containing property of a value in excess of $100.

It appears the victim and her husband were looking for a particular address in Broward County. Having no success, they pulled their car up to the curb and the victim rolled down her car window and asked directions from three boys standing beside the road. One of the boys responded with the directions and then grabbed the victim’s purse from her lap; all three then fled, knocking down another victim en route. Unfortunately for them, the latest victim recognized the boys and identified them for the police. Later, the police went to an apartment looking for the boys. At first they received no response but eventually the boys came out and were arrested. A search revealed that among them the boys possessed approximately the sum of money taken from the victim’s purse, and appellant possessed some of the victim’s jewelry.

Appellant was charged with grand theft and battery and was found guilty as charged after an adjudicatory hearing. On appeal it is contended that the trial court erred in not granting appellant’s motion for judgment of acquittal as to both counts charged.

Numerous purse snatching cases were cited by appellant to support his contention that an acquittal was indicated. Typically, those cases involve the defendant’s presence during a purse snatching by one of a group other than the defendant, after which the group flees. However, in the present case we have appellant’s presence, the victim’s purse snatched by one of the group, all of them fleeing, hiding out in an apartment, and some of the victim’s jewelry found on appellant’s person together with a sum of money he claims was his.

Since appellant must be convicted, if at all, as an aider and abettor, the State must prove appellant’s intent to participate in the commission of the crime, which in this case requires the adduction of circumstantial evidence. Under the facts of this case, whether the evidence excluded every reasonable hypothesis except that of guilt was a fact question that was resolved by the trier of fact. As the court said in Amato v. State, 296 So.2d 609 at 610 (Fla. 3d DCA 1974):

Bearing in mind that with circumstantial evidence, such as we have in the case at bar, the test to be applied on review of a denial of a motion for judgment of acquittal is not whether, in the opinion of the trial court or the appellant [sic] court, the evidence fails to exclude every reasonable hypothesis but that of guilt but, rather, whether the jury might reasonably so conclude. Vick v. United States, 216 F.2d 228 (5th Cir. 1954). The jury is the pivotal point at which the evidence is aimed, not the courts.

See also: Richardson v. State, 335 So.2d 835 (Fla. 4th DCA 1976). We believe the record supports that finding.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

ANSTEAD and BERANEK, JJ., concur.


author:
LAWRENCE A. CHEHARDY, Justice Ad Hoc.
     DENNIS, Justice, LEMMON, Justice, CALOGERO, Justice. CALOGERO, Justice, MARCUS, Justice

text:
    STATE of Louisiana v. Emile C. AGE.
    No. 81-KA-0577.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    On Rehearing May 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Madeleine Slaughter, Cliff R. Strider, III, John Craft, Asst. Dist. Attys., for plaintiff-appellee.
    Calvin Johnson and Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   LAWRENCE A. CHEHARDY, Justice Ad Hoc.

Defendant, Emile C. Age, was charged by bill of information with the crime of attempted armed robbery, in violation of La. R.S. 14:27; 14:64. On January 23, 1980, he was tried before a twelve-person jury which found him guilty as charged. Thereafter, the court sentenced him to serve ninety-nine years at hard labor as a double offender under La.R.S. 15:529.1. Defendant now appeals on the basis of three assignments of error, all of which are argued.

The record establishes the following set of facts:

On June 28, 1979, Officers Kelly and Marie responded to an attempted armed robbery broadcast on their car radio. The description of the assailants was transmitted as two black males, wearing white hats and dark clothing. As the two officers turned onto Loyola Avenue, they observed two black males wearing white hats walking behind a third black male. Since two of the men fit the description, the policemen stopped all three (one was a juvenile), identified themselves as police officers and frisked them for weapons. No weapons were found on any of the three subjects but a pocket knife was recovered from the side of a building where the juvenile had thrown it just prior to the officer’s approach.

Upon contacting the officers at the scene of the alleged crime, the policemen learned that only two men were involved in the attempted robbery. After brief questioning, the third subject was released, while defendant and the juvenile were returned to the scene where they were positively identified by the victim as his assailants.

According to the victim, one William Peterson, he was approached by two black males as he walked down St. Charles Avenue. The defendant herein grabbed him around the neck in an arm lock position as he came up with a knife in the other hand. The victim struggled back, grabbing both arms of the defendant, and kicking at the juvenile who confronted him, also with a knife in hand. Peterson’s assailants ordered the victim to turn over his money or they would kill him. At that moment a witness from a motel balcony hollered at the subjects, who became frightened and fled the scene.

Defendant by assignment of Error No. 1 argues that the trial court erred in refusing to allow defense counsel to question prospective jurors as to whether their previous jury had recommended the death penalty after finding a defendant guilty of first degree murder in a previous trial.

The voir dire occurred as follows:

“BY MR. JOHNSON: (addressing a prospective juror)
Q What type of case was it?
A It was first degree murder.
Q Was there a jury verdict?
A Yes, sir.
Q What was that verdict?
A It was guilty.
Q Guilty as charged?
A Yes, sir.
Q Was there a sentencing hearing?
A Yes, sir.
Q What was the sentence_
BY MS. SLAUGHTER:
Your Honor, the defense attorney has asked — the juror has said he was on a first degree murder case, and the verdict was guilty, and now, the defense attorney is asking the juror if there was a sentencing hearing, and he’s going to ask him what was the result of the sentencing hearing. I don’t think that’s a proper question.”

After this objection, there was a bench conference at which the judge sustained the objection and refused to allow defense counsel to ask questions on the sentencing trial. His reasons for the ruling were as follows:

“BY THE COURT:
Since the law says that the sentencing of a defendant is of no concern to the jury, except in a capital case, and this is not a capital case, the court will sustain the state’s objection to the question.”

Defendant alleges that knowledge on how a prospective juror voted in a sentencing trial is relevant to jury impartiality to ascertain prosecution bias. Defendant claims that a death recommendation is more indicative of possible partiality than a conviction, thus, necessary information to exercise peremptory challenges.

Voir dire examinations fall within the scope of La.C.Cr.P. art. 786 and La.Const. Art. 1, § 17 which gives defendant the “right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.” Although wide latitude must be given to a defendant in a voir dire examination so that he may intelligently exercise his right to peremptory challenges, State v. Monroe, 329 So.2d 193 (La.1976), this right is to be exercised within the discretion of the trial judge who determines the scope of the examination under the prevailing facts and circumstances. State v. Nicholas, 397 So.2d 1308 (La.1981).

This Court in State v. Holmes, 347 So.2d 221, 223 (La.1977), overruled prior jurisprudence and held that:

“ * * * [I]t is permissible for defendant to ask prospective jurors during voir dire questions such as: (1) Have you ever served on a criminal jury before? (2) What was the charge in that case? (3) What was the verdict in the case?, etc. * * * 11

In the light of this decision even if this Court would find the judge’s ruling unduly restrictive, the disallowance of a proper question is not ground for automatic reversal. In evaluating the fairness of the ruling the entire examination must be considered. State v. Vinet, 352 So.2d 684 (La.1977).

The restrictions herein do not deprive defendant of his right to full voir dire examination, especially considering that the restricted questions refer to a sentencing procedure not relevant to the trial at bar. Counsel’s assumption that jurors who render a recommendation of death after a finding of guilt are more oriented to the prosecution than jurors who merely return a verdict of guilty in a noncapital case is a matter of speculation only.

We hold that assignment of Error No. 1 is without merit.

In assignment of Error No. 2 defendant alleges that the court erred in finding defendant to be a multiple offender on the basis of a waiver of rights form rather than a transcript of the plea colloquy on the prior plea. The defendant pleaded guilty to simple robbery, a violation of La.R.S. 14:65, on April 20, 1978, at which time he was sentenced to two years in Parish Prison. Two years later, on February 22, 1980, this guilty plea was used to enhance defendant’s sentence for his conviction of attempted armed robbery in the present ease. At this hearing, the state introduced the bill of information, the minute entry, and the Boykinization form used to record the guilty plea in 1978, in support of its charge against defendant as a double offender. Defendant objects to the use of the Boykin form to prove that he knowingly, intelligently and voluntarily waived his constitutional rights. He claims that the state must produce a contemporaneously-recorded transcript of the Boykin colloquy.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the Supreme Court emphasized three federal constitutional rights which are waived by a guilty plea: the privilege against self-incrimination; the right to trial by jury; and the right to confront one’s accusers. The court then announced its unwillingness to presume waiver of these important rights from a silent record. Louisiana’s construction of the Boykin, supra, decision was made applicable to all guilty pleas taken after December 8, 1971, by this Court in State ex rel LeBlanc v. Henderson, 261 La. 532, 259 So.2d 557 (La.1972). The court went on to say in State v. Lewis, 367 So.2d 1155 (La.1979), that a conviction could not be used to enhance punishment in a multiple offender proceeding unless the record affirmatively discloses that the Jackson requirements were met. The Court in State v. Holden, 375 So.2d 1372, 1375-1376 (La.1979), further stated:

“In State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85, we held that a plea of guilty would not be considered as knowingly made with awareness of its consequences unless, at the time of the plea, the accused was informed of and made a knowing waiver of his right to jury trial, his right to confront his accusers, and his privilege against self-incrimination. We did not at that time require that the judge himself conduct the interrogation or that a contemporaneous record be made of it; but we did point out that, unless these were done, an eviden-tiary hearing would be required if post-conviction attack was made on the guilty plea because the record did not affirmatively show these waivers.
“ * * * Upon objection by defense counsel that the guilty plea does not affirmatively show it was taken in compliance with Jackson and LeBlanc, the state will have the burden to show as to these convictions that the defendant waived his constitutional rights as required by the cited opinions of this court.”

The minutes of defendant’s guilty plea show that the trial court interrogated the defendant as to whether he understood his constitutional rights, the Court explaining same and the defendant answering in the affirmative. Although this entry does not specify that all three Boykin rights were explained to defendant and that defendant knowingly and intelligently waived those rights, it is this Court’s opinion that the minute entry reflection of the court’s explanation of defendant’s constitutional rights, inquiry as to whether defendant understood these rights and defendant’s answer in the affirmative, together with the well-executed waiver of rights form, satisfies the intent of Boykin, supra, LeBlanc, supra, and State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (La.1971).

The waiver of rights form signed by defendant and his attorney on April 20, 1978, at the time defendant entered a plea of guilty, clearly sets forth the pertinent constitutional rights waived by a guilty plea. The waiver provided as follows:

“264-092 R.S. 14-65 Emile Age Jr.
11070100166
1.Right to trial and free appeal if convicted.
2. Waives right to trial and free appeal by entering plea of guilty.
3. By pleading guilty waives right against self incrimination.
4. Waives right to confront and cross-examine witnesses and call witnesses on defendant’s behalf.
5. Waives right to object to any evidence offered by the State.
6. (If applicable, withdraw all motions previously filed.)
7. Waives right to object to the composition and the way the jury will be selected to try case.
8. Inform defendant of maximum sentence (Parole - 0 - 7 yrs Probation - Hard Labor)
9. Defendant has not been forced, threatened or coerced into entering plea of guilty and states he is voluntarily entering the plea of guilty because he is in fact guilty as charged.
/s/ Emile Age /a/ James Brodtmann
PILED 4-20-78
MINUTE CLERK ‘G’

This Court in State v. Tucker, 405 So.2d 506 (La.1981), accepted the minute entry concerning the abbreviated colloquy along with a well-executed “waiver of rights” form signed by defendant, his attorney and the trial judge as constituting a sufficient affirmative showing in the record that defendant knowingly and intelligently waived his “three right” constitutional privileges. It is this Court’s opinion that in the instant case the reasoning of the Tucker case applies and the court properly upheld the use of defendant’s plea of guilty in the earlier conviction to enhance his attempted armed robbery charge.

This assignment of error is without merit.

Defendant argues that the trial court erred in imposing an excessive sentence of ninety-nine years (the maximum possible) as a multiple offender under La.R.S. 15:529.1. Defendant’s prior conviction for simple robbery (purse snatching) was used to enhance his sentence for a conviction of attempted armed robbery.

After establishing the fact that defendant had a prior conviction which allegedly could be used to sentence him as a double offender, the court began the sentencing procedure under the guidelines of La.C. Cr.P. art. 894.1. The judge elicited the defendant’s age (nineteen), his birth date and place. He described the evidence as overwhelmingly in favor of guilty, and noted that defendant was ineligible for suspension of sentence and probation, given the nature of the offense and his status as a multiple offender. The judge felt that the defendant needed a custodial environment because there was an undue risk that the defendant would commit another crime. The aggravating circumstance mentioned by the judge was that the defendant claimed innocence despite the overwhelming evidence against him.

In State v. Guiden, 399 So.2d 194, 200 (La.1981), this Court emphasized that “[wjhile the trial judge need not articulate every aggravating and mitigating circumstance presented in La.C.Cr.P. Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.”

This Court is of the opinion that the trial judge adequately satisfied the sentencing procedures under the guidelines of La.C. Cr.P. art. 894.1. Assignment of Error No. 3 is without merit.

The conviction and sentence of defendant Emile C. Age is affirmed.

DENNIS, J., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by DENNIS, J.

LEMMON, J., dissents in part and assigns reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The minute entry and waiver of rights form do not sufficiently indicate that the defendant was informed of his right to a jury trial, nor that he knowingly, intelligently and voluntarily waived that right. The statement in the waiver of rights form relating to defendant’s right to full voir dire examination of prospective jurors is meaningless to one unaware of his right to trial by jury in the first instance.

Further, the trial court failed to adequately consider the sentencing guidelines listed in La.C.Cr.P. art. 894.1 and incorrectly considered a plea of not guilty as an aggravating circumstance.

The case should be remanded with orders that a pre-sentence report be prepared and a contradictory sentencing hearing conducted.

LEMMON, Justice,

dissenting in part.

Because a maximum sentence was imposed without adequate compliance with C.Cr.P. Art. 894.1 and without a presen-tence investigation, I would set aside the sentence and remand for resentencing. At the resentencing defendant can offer evidence as to the complaint expressed in his brief.

ON REHEARING

CALOGERO, Justice.

Defendant Emile Age was tried by jury and found guilty of the crime of attempted armed robbery in violation of La.R.S. 14:27 and 14:64. On the strength of a prior guilty plea conviction on a charge of simple robbery, the trial court adjudicated defendant a second offender and imposed the maximum permissible sentence of ninety-nine years at hard labor. La.R.S. 15:529.1. On appeal defendant urged three assignments of error. Upon original hearing, finding none of the assignments meritorious, the Court affirmed the conviction and sentence. We granted this rehearing to reconsider whether the defendant was properly adjudicated a second offender and whether the ninety-nine year sentence was properly imposed.

Multiple Offender Conviction

Defendant argues that the court erred in finding him a multiple offender. He contends that he was not properly Boykinized before he pled guilty to the 1978 offense of simple robbery, and accordingly the prior conviction cannot be used to convict him of being a second offender.

Age pled guilty to simple robbery in 1978, at which time he was sentenced to two years in parish prison. In the multiple offender hearing, the state sought to use this prior guilty plea conviction, to have defendant adjudicated a second offender.

At the hearing the state introduced the minute entry of the 1978 guilty plea proceedings and a waiver of rights form bearing the defendant’s signature. Defendant objected to the use of the form to prove that he knowingly, intelligently and voluntarily waived his constitutional rights, contending that the state must produce a contemporaneously recorded transcript of the Boykin colloquy with the trial judge. It is further argued that even if the form is considered, it does not establish that the defendant was properly Boykinized prior to the acceptance of his guilty plea.

It is now well settled that a guilty plea is constitutionally valid only if the record evidences a knowing and voluntary waiver of the constitutional rights that are being waived, particularly the right to trial by jury, the right to confront accusers and the privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). State v. Robicheaux, 412 So.2d 1313 (La.1982); State v. Haisell, 403 So.2d 688 (La.1981); State v. Bowick, 403 So.2d 673 (La.1981); State v. Williams, 384 So.2d 779 (La.1980); State v. Bolten, 379 So.2d 722 (La.1980); State v. Lewis, 367 So.2d 1155 (La.1979); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

In the present case the state introduced only the minutes of the guilty plea proceeding and a waiver of rights form. The minutes show merely that the court “interrogated the defendant as to whether he understood his constitutional rights, the court explained the same and the defendant answered in the affirmative.” This entry falls far short of establishing that the defendant was specifically informed of his right to trial by jury, his right to confront his accusers and his privilege against compulsory self-incrimination, and that he knowingly and voluntarily waived those rights.

Complementing the minutes with the substance of the waiver of rights form used in this instance, the record remains deficient insofar as reflecting an adequate Boykinization.

The waiver of rights form is deficient in that it did not adequately inform defendant of his right to trial by jury, nor did it adequately inform him of his privilege against self-incrimination. The form is quoted in full in the original opinion and will be quoted here only insofar as it is pertinent to this discussion.

As concerns the advisement of the right to trial by jury, the form only provides that the defendant had a “right to trial and free appeal if convicted” and that he “waives right to trial and free appeal by entering plea of guilty.” Thus, the form does not affirmatively show that defendant was either advised of his right to a jury trial or that he waived that right. A record only evidencing a general advisement of the right to trial and the waiver thereof does not affirmatively show that the defendant knowingly and voluntarily waived his right to trial by jury. State v. Santiago, 416 So.2d 524 (La.1982). The deficiency in that advice is not remedied by the inclusion of the seventh numbered paragraph of the form (well after the right to trial advice in paragraphs one and two) which refers to the waiver of the right to object to the “way the jury will be selected to try case.” Such advice is meaningless to one who has not been informed that he has a right to a trial by a jury.

As concerns the advisement of the privilege against self-incrimination defendant was only informed that “by pleading guilty waives right against self-incrimination.” The form does not show that the defendant was informed that he had the right to remain silent at trial. It was held in State v. Martin, 382 So.2d 933 (La.1980), and recently reaffirmed in State v. Robicheaux & Powell, 412 So.2d 1313 (La.1982), that an advisement of the privilege against self-incrimination in which the defendant was not told that the privilege applied at his trial was inadequate “because it failed to inform the defendant of his right to stand trial without being forced to testify against himself; because the choice to stand trial is the crux of the decision to plead guilty; because an accused cannot make this choice intelligently if he is unaware of the rights he may exercise at trial; and because the record did not show in any way that the defendant intended to waive his right not to testify against himself at trial.” Defendant was not informed of his right to stand trial without being forced to testify against himself, and, therefore, the record does not evidence a knowing and voluntary waiver of that right.

Therefore, because the record does not affirmatively show that the defendant knowingly and voluntarily waived his right to trial by jury and his privilege against self-incrimination, the guilty plea conviction should not have been used as a basis for the multiple offender charge against him.

In view of our holding here that the record, including the rights form, does not show that defendant knowingly and voluntarily waived his Boykin rights, we need not consider the argument that the waiver of rights form should not have been considered at all.

Sentencing

Defendant also argues that his sentence of ninety-nine years at hard labor, the maximum sentence allowable under La.R.S. 15:529.1 was illegal for three reasons: first, because the trial judge did not comply with La.C.Cr.P. art. 894.1 in articulating the reasons for the sentence; second, because the sentence is not proportionate with the circumstances of the offense and the offender; and third, because the severity of the sentence was prompted solely because of the defendant’s choice to exercise his right to trial.

Because of our holding on the Boy-kin issue, that the prior guilty plea conviction cannot be used to convict defendant as a second offender, the case must be remanded for resentencing with a maximum allowable sentence of forty-four and one-half years under La.R.S. 14:27 and 14:64. Thus, defendant’s arguments regarding the illegality of his ninety-nine year sentence need not be considered here. However, it is well settled that the record of the sentencing must reflect that the trial judge adequately considered the guidelines presented in La.C.Cr.P. art. 894.1 and that the sentence is particularized to the circumstances of the offense and the offender. State v. Guiden, 394 So.2d 194 (La.1981); State v. Molinet, 393 So.2d 721 (La.1981).

Decree

For the foregoing reasons, the opinion of this Court on original hearing is vacated, defendant’s conviction of attempted armed robbery is affirmed, his adjudication as a second offender is reversed, and the case is remanded to the district court for the defendant to be resentenced in accordance with law.

ORIGINAL OPINION VACATED; CONVICTION AFFIRMED; SECOND OFFENDER ADJUDICATION REVERSED: REMANDED FOR RESENTENCE.

CALOGERO, J., assigns additional concurring reasons.

WATSON, J., concurs in the result.

BLANCHE and LEMMON, JJ., dissent.

MARCUS, J., dissents and assigns reasons.

CALOGERO, Justice,

assigning additional concurring reasons.

The defendant argues that the waiver of rights form should not have been considered in determining whether he was properly Boykinized prior to entering his 1978 guilty plea. He contends that the state only meets its burden of proving that the plea was knowingly and voluntarily entered by introducing a copy of the transcript of the guilty plea proceedings in which it is shown that the trial judge advised defendant of his right to trial by jury, his right to confront his accusers and his privilege against self-incrimination, and that the defendant waived those rights. Because we found that the record, even considering the waiver of rights form, did not affirmatively show that defendant knowingly and voluntarily entered his 1978 guilty plea with a full understanding of the rights he was waiving, we did not consider this argument of defendant.

Although it is the view of some members of this Court that the issue is a settled one, that is, that the waiver of rights form may be considered, our jurisprudence is not entirely clear as to whether, or under what circumstances, a waiver form will suffice in lieu of a contemporaneously recorded transcript of the colloquy between the trial judge and the defendant evidencing such a knowing and voluntary waiver.

Generally, the instances in which a waiver of rights form has been allowed by this Court to supplement the record of the guilty plea proceedings have been where the contemporaneously recorded transcript of the colloquy between the trial judge and the defendant had a technical deficiency. State v. Lawson, 410 So.2d 1101 (La.1982); State v. Washington, 406 So.2d 191 (La.1982); State v. Haisell, 403 So.2d 688 (La. 1981); State v. Bowick, 403 So.2d 673 (La.1981); State v. Dunn, 390 So.2d 525 (La.1980). In only two cases has this Court considered the waiver form where the colloquy was not part of the record also, and in those cases the waiver form was far more detailed than the one in this case, it was initialed line by line by the defendant and it was signed by the defendant, his attorney and the trial judge. State v. Santiago, 416 So.2d 524 (La.1982); State v. Tucker, 405 So.2d 506 (La.1981).

In State v. Santiago, supra, the statement therein that' waiver forms may be considered in lieu of the transcript of the proceedings was not determinative, since, like in the present case, it was therein found that even considering the waiver form there was not a sufficient showing that the plea was knowingly and voluntarily entered. The panel of the Court which decided Santiago consisted of only four permanent members of this Court, and a rehearing has since been granted which is presently pending.

State v. Tucker, supra, too, was not rendered by the full Court although rehearing was denied by the full Court, as is our procedure in split panel cases. The Court in Tucker did consider the waiver form in lieu of the transcript of the colloquy between the trial judge and the defendant, but the Court did so because of the “well executed” nature of the form and the “abbreviated colloquy” in the minute entry. However, the Court cautioned:

There is potential for abuse of the accused’s constitutional rights in the continued use of printed ‘waiver of rights’ forms, and for this reason their use is to be discouraged. The direct, three-right colloquy between the trial judge and defendant is preferable and should be encouraged.

Furthermore these latter two cases rely on State v. Dunn, supra, the first case to allow the use of a waiver form at all, as support for their holdings. However, as stated above, Dunn permitted the waiver form to be used to supplement a technically deficient colloquy, not to be used simply in lieu of the colloquy. Additionally, Dunn was a misdemeanor case rendered prior to this Court’s decision in State v. Jones, 404 So.2d 1192 (La.1981), which held that Boy-kin was applicable to misdemeanor cases. And, it has been recognized that a less rigid procedure may suffice in misdemeanor cases than may do so in felony cases. State v. Jones, supra, Justice Dennis concurring, joined by Chief Justice Dixon and Justice Calogero. Thus State v. Dunn, supra, is scant support for the holding that a waiver of rights form may be used in lieu of the contemporaneously recorded transcript of the colloquy between the trial judge and the defendant.

Furthermore, prior jurisprudence of this Court, which has not to this date been overruled, has specifically provided that a contemporaneously recorded transcript of the colloquy between the trial judge and the defendant is required to show the voluntariness of the guilty plea before the conviction based on that plea can be used to enhance punishment in a subsequent proceeding. In State v. Bolten, supra, we stated:

However, for pleas of guilty taken after December 8, 1981, in order to use the prior plea of guilty to enhance punishment in a subsequent proceeding, the state must, if objection is made to its voluntariness or to its being a knowing plea (due, e.g., to the absence of waiver of the Boykin rights), affirmatively show through (only) a contemporaneously recorded transcript that the plea was voluntary and made with an awareness of its consequences. State v. Lewis, 367 So.2d 1155 (La.1979); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

Also in State v. Williams, 384 So.2d 779 (La.1980) it was held:

In cases where a prior conviction based on a guilty plea is being used to enhance the penalty under our multiple offender laws, we have required a strong showing of a knowing and voluntary waiver of rights by the defendant when his guilty plea is accepted by the trial judge. In such instances, we require that the state produce a contemporaneous record of the defendant’s guilty plea colloquy with the trial judge which affirmatively shows the waiver of his right to jury trial, his right to confront his accusers, and his privilege against compulsory self-incrimination.

In light of the state of the jurisprudence on this narrow point, it is obviously the preferable (and safer) procedure for the trial judge to advise the defendant verbally, in court, of his Boykin rights and to see to it that a transcript of the proceedings is preserved. Furthermore, when proof of an adequate Boykinization is necessary and relevant, as in later multiple offender proceedings, the transcript of the Boykin colloquy should be made part of the record of those proceedings.

We originally held that the trial judge personally had to advise defendant of his rights and that the colloquy between them had to be transcribed because it was deemed the only way to ensure that the defendant was adequately advised of his rights without the necessity of a later evi-dentiary hearing. Additionally, this procedure was one that the bench and bar could easily follow and its utilization would add a measure of finality to guilty pleas by setting forth prophylactic procedures designed to eliminate post plea attacks.

As stated in the majority opinion, a guilty plea is constitutionally valid only if the record evidences a knowing and voluntary waiver of the constitutional rights that are being waived by the choice to plead guilty. It seems difficult if not impossible for the state to meet that burden by introducing merely a written waiver of rights form bearing a signature of the defendant. At the least, as was the case in State v. Halsell, supra, there would have to be an attestation by defense counsel and the trial judge that the rights on the form were explained to the defendant. Standing alone, the signed waiver form does not necessarily show that the defendant understood his rights and knowingly and voluntarily waived them.

While the signed waiver form may be probative in that regard, and perhaps even valuable as a complement to the transcribed colloquy, it falls far short of being independently sufficient.

I would therefore conclude, in the pertinent case, that the form alone, however clear and complete, does not suffic'e as an affirmative showing that the defendant knowingly and voluntarily waived his Boy-kin rights. I would apply the prior cases which held that the trial judge must affirmatively establish that the defendant knowingly and voluntarily waived his Boykin rights in a colloquy with the defendant which is contemporaneously recorded and then transcribed. State v. Williams, 384 So.2d 779 (La.1980); State v. Martin, 382 So.2d 933 (La.1980); State v. Bolten, 379 So.2d 722 (La.1980); State v. Lewis, 367 So.2d 1155 (La.1979).

MARCUS, Justice

(dissenting).

I consider that the record adequately evidences a knowing and voluntary waiver of defendant’s right to trial by jury. While the form only informs defendant of his right to trial and contains a waiver thereof, I consider the deficiency is remedied by the inclusion later in the form of a waiver of his right to object to the way the jury would be selected to try the case. Reading the form as a whole, I find sufficient compliance with the Boykin requirement of a waiver of the right to trial by jury.

Secondly, I consider that informing defendant that “by pleading guilty [he] waives [his] right against self-incrimination” sufficiently satisfies the Boykin requirement of a waiver of the privilege against self-incrimination.

Accordingly, I respectfully dissent.

       Judges Patrick M. Schott, Lawrence A. Chehar-dy and Denis A. Barry of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack Crozier Watson and Harry T. Lem-mon.

      . Attached to defendant’s brief is empirical data, from which he argues that this trial judge in armed robbery cases regularly gives a sentence of five to 10 years on a guilty plea and 90 to 99 years on a conviction following trial. Defendant therefore argues that the sentence in this case was excessive because this trial judge does not consider appropriate factors and does not exercise discretion in most armed robbery sentences.
      If a defendant establishes that a trial judge regularly punishes defendants who avail themselves of the right to trial by imposing substantially more severe sentences after convictions than after pleas, then that defendant may be entitled to be resentenced according to appropriate considerations pertaining to the particular crime and the particular offender. The present record does not contain such a showing.

      . Defendant, a nineteen year old male, was accused of attempting to rob one William Peterson, as he walked down St. Charles Avenue in New Orleans. Mr. Williams testified that Age, accompanied by a juvenile, approached him and grabbed him from the rear threatening him with a knife and demanding all his money. The juvenile also had a knife. A struggle ensued. At that moment a witness from a motel balcony shouted at the subjects, who became frightened and fled.

      . See additional concurring reasons by the author.


author: COVINGTON, Judge. COLE, Judge, COLE, Judge.

text:
    Barry L. NETTLES v. Earl E. BOWLIN, et al.
    No. 14582.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    On Rehearing June 29, 1982.
    Rehearing Denied Aug. 24, 1982.

      John Degravelles, Baton Rouge, for plaintiff-appellant Barry L. Nettles.
    Laurel B. Clauer, Baton Rouge, for defendant, intervenor and third party defendant-appellee.
    Claude F. Reynaud, Jr., Baton Rouge, for defendant and third party defendant-appel-lee South Central Bell Telephone Co.
    Arthur H. Andrews, Baton Rouge, for defendant-appellee Dr. Richard M. Hill.
    W. Luther Wilson, Baton Rouge, for defendant-appellee Earl E. Bowlin, Gordon E. Minor and Fred Eubanks.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This suit seeks to recover damages for personal injuries sustained by Barry L. Nettles on August 15, 1977, when a wooden utility pole which he had climbed, as an employee (apprentice lineman) of Gulf States Utilities Company, broke due to a rotten condition at its base, causing him and the pole to fall to the ground. As a result of the fall, Nettles sustained a severe injury for which he had to undergo numerous surgical procedures; and ultimately he had to have his left leg amputated, for which he is now receiving workmen’s compensation.

Nettles sued his three Gulf States supervisors (who successfully pursued a motion for summary judgment in the district court which has been previously upheld by this court), Dr. Richard Hill, the owner of the property where the pole was situated (who was subsequently dismissed voluntarily from the suit by appellant), and South Central Bell, one of the appellees herein. Nettles sued South Central Bell, alleging that:

“... South Central Bell Telephone Company was negligent in failing to properly or adequately maintain the pole; failing to test, or otherwise check the pole to see whether or not it was in a safe condition at the time that it removed its telephone wires from the pole prior to the accident; ...” (Emphasis ours)

Nettles also relies on the phone company’s “garde” of the pole in order to place liability (strict liability) on South Central Bell. South Central Bell answered the appellant’s petition denying both negligence and “garde” of the pole; and then in a later pleading, South Central Bell third partied Gulf States Utilities Company, based upon a “joint use agreement” between South Central Bell and Gulf States.

Gulf States intervened, seeking recompense for the sums paid Nettles in workmen’s compensation and for medical expenses. Appellant then filed a demand directly against Gulf States, alleging that he was a third party beneficiary to the joint use agreement.

After trial by jury, verdict was returned in favor of the defendants, with the trial judge signing judgment in accordance therewith. Plaintiff has appealed. We affirm.

First, the appellant contends that the trial court erred in allowing six peremptory challenges each to Gulf States and South Central Bell while granting only six to the plaintiff. It is the appellant’s contention that there was a “complete absence of adversity” between Gulf States and South Central Bell, so that they should have been treated as one “side” under LSA-C.C.P. art. 1764, and allowed only six peremptory challenges. There is no merit to this contention. The trial judge determined that Nettles, who sued South Central Bell on grounds of negligence and strict liability; and South Central Bell, which sued Gulf States based on its contract of joint use; and Gulf States, which intervened against South Central Bell; the other defendants; and Gulf States, seeking preferential recompense for the sums that it paid to Nettles under Louisiana Workmen’s Compensation Act, were distinct “sides” of the case (a “three-sided” suit), and therefore each had a right to six peremptory challenges. We agree. This decision, which is clearly within his discretion, was made by the trial judge prior to the commencement of the trial.

Article 1764 of the Code of Civil Procedure provides the primary guide for use of peremptory challenges in jury trials. Further guidance, insofar as multi-party litigation is concerned, is found in Official Revision Comment (c) under LSA-C.C.P. art. 1764:

“Under this article, if the intervenor takes the side of either party he is regarded as being an extra party on that side. If the intervenor is opposed to both parties, then the suit has three sides, and the above article takes care of that situation also. This is also true as to third parties under the third party practice articles, Arts. 1111-1116, supra.” (Emphasis ours.)

This Comment indicates that the drafters of this article contemplated the problems of multi-party litigation. In the present case, South Central Bell third partied Gulf States based on their contractual agreement. The pleadings establish a third party demand with adversity and real substantive issues involved. In addition, as stated above, there is an intervention opposing both parties (plaintiff and defendants) filed by Gulf States.

South Central Bell’s interest in the present suit is clearly adverse to that of Gulf States. This is a “three-sided” suit. See Annot., 32 A.L.R.3d 747. We find the trial judge’s granting of six peremptory challenges to each side, based on LSA-C. C.P. art. 1764, was proper under the circumstances.

Next, the appellant argues that the jury erred in failing to find South Central Bell negligent, or that it was strictly liable because it had custody or “garde” of the subject pole.

A jury verdict should be maintained unless the record reflects that its conclusions of fact are not supported by the evidence, and/or its application of the law is clearly erroneous. Perrin v. St. Paul Fire and Marine Insurance Company, 340 So.2d 421 (La. App. 4 Cir. 1976). In the absence of manifest error, the appellate court is not to disturb the finding of the jury which has evidence before it furnishing a reasonable factual basis for its verdict, based upon its reasonable evaluation of credibility. Ulmer v. Baton Rouge General Hospital, 361 So.2d 1238 (La.App. 1 Cir. 1978). We have carefully examined the record and we see no manifest error in the jury’s finding that South Central Bell was not negligent. There is a reasonable factual basis for the findings of the jury. Esta v. Dover Corporation, 385 So.2d 439 (La.App. 1 Cir. 1980), writ denied, 392 So.2d 690 (La.1980).

The evidence shows that the Gulf States crew in which Nettles was working was removing the Gulf States electrical lines from the subject pole to a new pole which was located a few feet away. Removal of the power lines was necessitated by the construction of a driveway to a parking lot for a new shopping center and grocery store at the corner of Siegen Lane and Perkins Road in Baton Rouge.

The subject pole was a part of a series of Gulf States poles (supporting only that company’s aerial cables) which ran parallel to Louisiana State Highway 427 (Siegen Lane). There were four aerial cables of Gulf States on the subject pole which had to be moved to the new pole. All of the cables, except one, had been removed the week before the accident by the same crew, including Nettles. Some of the crew climbed this and other poles, but Nettles was not allowed to climb the pole at that time, because he was an apprentice lineman (such linemen are not qualified to climb poles with energized cables). When Nettles did climb the pole, the remaining cable had been de-energized. An experienced Gulf States lineman, Darryl Dufour, who had climbed the pole the previous week, testified that he found it was “a bit shaky”. He reported this to Minor, his line foreman.

On the morning of the accident, Raymond Loupe, another Gulf States lineman, told Earl Bowlin, the foreman of the crew (replacing Gordon Minor), that the pole was “shaky,” and that he suggested that Nettles be allowed to use the bucket-truck. Bowlin testified that he did not know of the shaky condition, and that if he had known of the shaky condition of the pole, he would have required a testing of it prior to its being climbed. In any event, the Gulf States foreman did not require the pole to be tested before it was climbed.

It is clear from the evidence that appellant was a Gulf States employee who was injured while working at his job under the supervision of Gulf States. The pole in question was owned by Gulf States. Members of the Gulf States crew had climbed it, and were in a position to determine its safety. Their failure to do so resulted in the injury to Nettles.

The jury was instructed properly as to negligence. We find no error committed by the trial court regarding negligence. Nor does the record reveal any negligence on the part of South Central Bell.

Turning now to the question of strict liability, we find that LSA-C.C. art. 2317, as construed by Loescher v. Parr, 324 So.2d 441 (La.1975), Tate, J. as organ of the Court, and its progeny, have no application to the instant case. While Article 2317, according to Justice Tate, 324 So.2d at 448, embodies the concept of the legal fault of the guardian (custodian) of a thing for the damage caused by the defect of his thing, it is elementary that one must have “garde” of the thing in order to be held strictly liable for its defective condition. Such is not the case before us. South Central Bell had no “garde” of the defective pole. It was solely in the custody and control of Gulf States, which was actually working on the pole, or in the area of the pole, at the time of the accident, and which had actual knowledge, through its crew members, of the “shaky” condition of the pole. All of the circumstances surrounding or connected with the subject pole leading up to the accident to Nettles were under the control and supervision of Gulf States. The jury, based on the evidence presented to it, found from these facts that South Central Bell had no “garde” or custody of the pole. The only connection that South Central Bell ever had with the pole in question was to place a temporary wire on it on February 4, 1977 (some five or six months before Nettles’ accident), connecting the phone company’s underground terminal to the construction shack or office being used for the parking lot and shopping center construction in the area. The cables and lines of the phone company in the area were all underground. South Central Bell made no use of the subject pole or other poles of Gulf States in the area for aerial-line purposes. There was no reason for South Central Bell to maintain or take custody of Gulf States’ poles. The owner, Gulf States, did not transfer the custody or “garde” of the subject pole to South Central Bell. See Loescher v. Parr, supra at 449, fn. 7; Note, Things in One’s Custody — Louisiana Civil Code Article 2317, 43 Tul.L.Rev. 907 (1969). The joint use agreement herein required that Gulf States, as owner, maintain the subject pole in a safe manner. Article VIII of the agreement provides, as follows:

“Maintenance of Poles and attachments.
(a) The Owner, shall at its own expense, maintain its joint poles in a safe and serviceable condition ...”

The agreement does not impose joint responsibility on the parties to the agreement for the maintenance of the joint poles covered by the agreement.

Overall, on the review of the record, the trier of fact did not commit manifest error in determining freedom from negligence on the part of South Central Bell and in finding that South Central Bell was not a custodian (or have “garde”) of the defective pole. The jury’s verdict and the judgment based thereon will not be set aside. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The appellant further argues that he (Nettles) was the beneficiary of a third party beneficiary contract (stipulation pour autrui) between South Central Bell and Gulf States. There is no merit to this argument. The joint use agreement herein is an agreement of license or permit, dated January 2, 1932, under which certain mutual benefits to both the phone company and the utility company are intended from the use or joint use of the other’s utility poles, with the using party or permittee (licensee) indemnifying the owner against damage claims and with each party assuming the liability for damages to its own employees caused by the concurrent negligence of both parties. The agreement has never been construed by the parties in its almost 50 year history as a third party beneficiary contract, so as to make available to employees of either employer damage awards due to mere joint use of joint poles. The agreement contemplates that each party (employer) to the contract will provide for his own employees. We do not see how any reasonable interpretation of the joint use agreement can lead to the contract meaning that Gulf States agrees to pay damages above and beyond workmen’s compensation benefits when such damages occur either as a result of Gulf States’ sole negligence, or as a result of the concurrent negligence of Gulf States and South Central Bell, as appellant would have us do. LSA-C.C. art. 1890 and the jurisprudence construing the article are inapplicable to the circumstances of the present case.

The fundamental requirement of a stipulation pour autrui is that the third party relationship forms the consideration of the contract; the benefit derived from the contract by the third party may not merely be incidental to the agreement in question. The provision for the benefit of a third party must clearly manifest an intention to confer a benefit upon the third party. The joint use agreement in the case at bar does not clearly manifest any intention to confer a benefit on any third party; it is simply an agreement between two utilities for their mutual benefit. See HMC Management Corporation v. New Orleans Basketball Club, 375 So.2d 700 (La.App. 4 Cir. 1979), writs denied, 378 So.2d 1384 (La.1980); 379 So.2d 11 (La.1980).

Finally, appellant contends that the trier of fact erred in failing to find Gulf States negligent in causing the damages to him. The negligence of Gulf States, though apparent, was not at issue, except to show how the accident happened, and that it was caused solely by the negligence of Gulf States and not through any negligence of South Central Bell. Nettles was an employee of Gulf States, working within the course and scope of his employment at the time of the accident which caused the personal injuries to him. This is undeniably the kind of industrial accident contemplated by the workmen’s compensation act, LSA-R.S. 23:1031 et seq. Under LSA-R.S. 23:1032, his exclusive remedy is workmen’s compensation. Nettles cannot sue Gulf States for tort liability under the circumstances of the instant case. The appellant’s argument that Gulf States is liable to him because of its negligence is, therefore, without merit.

For the reasons assigned, the verdict and judgment appealed are affirmed, at the appellant’s costs.

AFFIRMED.

COLE, J., dissents and assigns reasons.

COLE, Judge,

dissenting

I respectfully dissent. A realistic appraisal of the intergsts of defendants South Central and Gulf States, as regards the basic issue of liability, leads me to conclude there was an absence of adversity between them. This is confirmed by the joint posture assumed by these defendants during trial. Underlying this lack of adversity is their contractual agreement which provides (Article XIII, Sub-part 5):

“All claims for damages arising hereunder that are asserted against or affect both parties hereto shall be dealt with by the parties hereto jointly. ...” (Emphasis added.)

Thus, the interests of South Central and Gulf States were, of contractual necessity, allied. This is true even though Gulf States was both an intervenor and a third party defendant, in addition to being a direct defendant.

It was apparent to Gulf States that its liability in this case, if any, would have to be based upon the joint use agreement and assessed against it as South Central’s third party defendant. It, therefore, behooved Gulf States to help prevent plaintiff from prevailing against South Central. This was Gulf States’ real interest. Otherwise, it was protected by tort immunity. LSA-R.S. 23:1032.

Accordingly, the trial court erred in the allocation of peremptory challenges. Under LSA-C.C.P. art. 1764, each “side” to litigation must be allowed an equal number of peremptory challenges. The plaintiff constituted one side of this litigation, with South Central and Gulf States combined constituting the other side. Yet, plaintiff was allowed six peremptory challenges while the two defendants were allowed a total of twelve peremptory challenges. By denying plaintiff an equal number of peremptory challenges, his right to a fair and impartial jury trial was impaired. LSA-C. C.P. 1764 permitted the trial court in this instance to allow each “side” not less than six nor more than ten peremptory challenges. It was essential, however, that each side be allowed the same number.

For these reasons, I would remand. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), does not require that we review the record and decide this case on the merits. Gonzales does not deal with a situation where the jury is unfairly selected and, therefore, improperly constituted. The basic right to a fair jury trial requires remand.

ON REHEARING

COLE, Judge.

A rehearing was granted in this case to reconsider the majority’s determination that the trial court did not err in allowing six peremptory challenges each to Gulf States and South Central Bell while granting only six peremptory challenges to the plaintiff. The action of the trial court was correct only if it may be said the plaintiff constituted one “side” of the litigation, while Gulf States and South Central each constituted an additional “side.” LSA-C. C.P. art. 1764.

In addition to the reasons set forth in the dissent to the original opinion, we note the basic allegations of South Central’s third party demand against Gulf States were admitted by Gulf States. In their answer to the third party demand, Gulf States did not even seek its dismissal. There was clearly no adversity between South Central and Gulf States. This was immediately noticed by counsel for the plaintiff who moved for a mistrial based upon the disproportionate allotment of peremptory challenges. The motion was denied. We think this deprived plaintiff of his basic right to a fairly selected jury and requires a remand.

For these reasons, and the additional reasons expressed in the dissent to the original opinion, we reverse the judgment of the trial court and order this matter remanded for a new trial with the jury selection to be in accordance with the principles herein expressed.

Appellees are assessed with the cost of this appeal, all other costs to await a determination of the merits.

REVERSED AND REMANDED.

      . Nettles v. Bowlin, 386 So.2d 658 (La.App. 1 Cir. 1980).

      . LSA-C.C.P. art. 1764 provides:
      “Each side is allowed six peremptory challenges. If there is more than one party on any side, the court may allow each side additional peremptory challenges, not to exceed four. Each side shall be allowed an equal number of peremptory challenges. If the parties on a side are unable to agree upon the allocation of peremptory challenges among themselves, the allocation shall be determined by the court before the examination on the voir dire.”

      . Article XIII of the joint use agreement provides:
      “LIABILITY FOR DAMAGES “Whenever any liability is incurred by either or both of the parties hereto for damages for injuries to the employes or for injury to the property of either party, or for injuries to other persons or property, arising out of the joint use of poles under this agreement, or due to the proximity of the wires and fixtures of the parties hereto attached to the jointly used poles covered by this agreement, the liability for such damages, as between the parties hereto, shall be as follows:
      “1. Each party shall be liable for all damages for such injuries to persons or property caused by its sole negligence or by its failure to comply at any time with the specifications herein provided for; provided that construction temporarily exempted from the application of said specifications under the provisions of Section
      (b) of Article VIII shall not be deemed to be in violation of said specifications during the period of such exemption.
      “2. Each party shall be liable for all damages for such injuries to its own employes or its own property that are caused by the concurrent negligence of both parties hereto or that are due to causes which cannot be traced to the negligence of the other party.
      “3. Each party shall be liable for one-half (V2) of all damages for such injuries to persons other than employes of either party, and for one-half (V2) of all damages for such injuries to property not belonging to either party that are caused by the concurrent negligence of both parties hereto or that are due to causes which cannot be traced to negligence of either party. “4. Where, on account of injuries of the character described in the preceding paragraphs of this Article, either party hereto shall make any payments to injured employes or to their respective relatives or representatives in conformity with (1) the provisions of any work-mens’ compensation act or any act creating a liability in the employer to pay compensation for personal injury to an employe by accident arising out of and in the course of the employment, whether based on negligence on the part of the employer or not, or (2) any plan for employes’ disability benefits or death benefits now established or hereinafter adopted by the parties hereto or either of them, such payments shall be construed to be damages within the terms of the preceding paragraphs numbered 1 and 2 and shall be paid by the parties hereto accordingly.
      “5. All claims for damages arising hereunder that are asserted against or affect both parties hereto shall be dealt with by the parties hereto jointly; provided, however, that in any case where the claimant desires to settle any such claim upon terms acceptable to one of the parties hereto but not to the other, the other party to which said terms are acceptable may, at its election, pay to the other party one-half (V2) of the expense which such settlement would involve, and thereupon said other party shall be bound to protect the party making such payment from all further liability and expense on account of such claim.
      “6. In the adjustment between the parties hereto of any claim for damages arising hereunder, the liability assumed hereunder by the parties shall include, in addition to the amount paid to the claimant, all expenses incurred by the parties in connection therewith, which shall comprise costs, disbursements and other proper charges and expenditures not including, however, attorney’s fees. Each of the parties hereto shall pay its own attorneys.”

      . LSA-C.C. art. 1890 states:
      “A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.”


author: CHEHARDY, Judge. SAMUEL, Judge, PER CURIAM. SAMUEL, Judge,

text:
    UNITED GAS PIPE LINE COMPANY v. Charles S. BECNEL, et al.
    Nos. 5-16 to 5-21.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied Aug. 19, 1982.

      Hargrove, Guyton, Ramey & Barlow, Thomas J. Wyatt and A. L. Wedgeworth, III, Shreveport and Talbot, Sotile, Car-mouche, Waguespack & Marchand, Vincent J. Sotile, Donaldsonville, for plaintiff-appellant.
    Martin, Himel, Peytavin & Nobile, Anthony J. Nobile, Lutcher, Michael Heltz, Gramercy, Tureau & Mire, Ralph Tureau, Gonzales, Bernard, Cassisa, Babst & Sapori-to, Frank Davis, Metairie, Becnel & Gra-vois, Larry C. Becnel, Vacherie, for defendants-appellees.
    Before SAMUEL, BOUTALL and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, United Gas Pipe Line Company (United), appeals several district court decisions in favor of the plaintiff and against the defendants in six consolidated expropriation suits. The judgments granted United a pipeline right of way and servitude through, under, over and across the defendants’ properties, and the plaintiff was also granted the right to use and occupy a temporary working area during the construction of the pipeline, consisting of an additional two strips of land on each subject tract.

In the suit against defendants Amelie Gerstner and Amelie Ellis Prescott Woods, consideration for all damages was fixed at $12,920, and reasonable attorney fees were fixed at $3,130. The plaintiff was ordered to pay the defendants’ expert witness John LeJeune $500.

In the suit against defendants Doris Sau-nier Matherne, Claude Joseph Saunier, Lois Saunier Rouchon, Wilbur Saunier, and Adrian Saunier Estave, consideration for all damages was fixed at $21,603 and reasonable attorney fees were set at $5,200.75. Plaintiff was also ordered to pay LeJeune $500 in this suit.

In the suit against defendants Luly A. Huguet Mastio, Marine H. Peters, Hester H. Berry, Marie Huguet Bourgeois and Sam Huguet, consideration for all damages was fixed at $16,213. Reasonable attorney fees were fixed at $3,953.25, and the plaintiff was ordered to pay LeJeune $500.

In the case against defendants Day Hu-guet, Daisy Huguet Richardson, Ray Hu-guet, Gertrude Huguet Folse, Carol Huguet Harper, Ruby Huguet Vicknair, Lorraine Huguet Ott, and Patricia Huguet Johnson, consideration for all damages was set at $17,235 and reasonable attorney fees were fixed at $4,208.75. The plaintiff was also ordered to pay LeJeune $500.

In the suit against defendants Timothy A. Becnel Inter Vivos Trust, Thomas J. Kliebert as Trustee for said Timothy A. Becnel Inter Vivos Trust, Kliebert Educational Trust and Charles S. Becnel, as Trustee for said Kliebert Educational Trust, consideration and all damages were fixed at $5,825, reasonable attorney fees were set at $1,411.25, and the plaintiff was also ordered to pay LeJeune $500 in that case.

In a later judgment in a case against Charles S. Becnel, et al., based on the stipulations of all parties it was ordered that the consideration for the right of way previously adjudged, unto plaintiff by the earlier judgment was thereby fixed at $12,025. Plaintiff was ordered to pay reasonable attorney fees of 15% or $1,803.75, but was not held liable for expert witness fees incurred by the defendants in this matter.

The plaintiff in all of these consolidated cases was ordered to pay all costs of the proceedings. None of the defendants have appealed the subject judgments, but ask that they be affirmed.

The issues presented to this court on appeal are whether the trial court was in manifest error in evaluating the expert testimony; whether the highest and best use of the subject tracts, based on the potential for assemblage, should have been considered industrial; whether severance damages were due to the subject properties and whether defendants are entitled to attorney fees.

Oren Russell, a real estate broker and appraiser, testified the subject tracts in this case are in an unimproved area, either wooded or lightly wooded. He said the market approach was the basis of establishing their valuation. He described the subject properties as having a highest and best use of rural residential and noted they did not have enough width to accommodate even small industry. All of the subject parcels he evaluated at an amount less than $2,000 an acre. Russell did admit that although there was heavy industry in the area of these parcels, all of the comparables used in his evaluation were residential.

Julius Bahlinger, another real estate appraiser, said that the subject tracts would have a highest and best use as residential and small commercial, and he restricted his attention to sales of comparables with like uses. He came to the conclusion that the value per acre for all five subject tracts was $2,000. Bahlinger said that although the records showed the properties should be valued at between $1,300 to $1,600 per acre, he increased it somewhat in looking to the foreseeable future.

When asked about the possibility of combining these tracts to other tracts in the area to produce larger tracts for industrial use, this expert said it was his experience this was a very difficult thing to do because there are always “hold outs” and homeowners who do not want to leave, resulting in the assemblage turning into a very costly operation.

Russell also testified that damages to these tracts by the pipeline would be relatively small. He said he did not think the properties could be used in the foreseeable future for industrial use, and maintained this position in spite of his admission in testimony that he could foresee an increase in growth of industry and commerce in the area over the next five years. However, he reiterated the difficulties of assemblage and felt that to assign a higher value on the property based on that possibility would be highly speculative.

John LeJeune, another real estate appraiser and developer, stated that he has testified as an expert in 436 trials involving property evaluations and has worked a great deal in St. James, St. John and Ascension Parishes during the 12 years prior to the trial in this case. LeJeune said he visited the subject properties, and he explained the importance of their location in the Cantrell Reach (a deep water area of the Mississippi River) and their proximity to what he called the “Cap Line,” the “P. O. E. Pipeline” and the Louisiana Offshore Oil Pipeline. He said that this area had the most intense industrial development activity in St. James Parish at the present time. It was his opinion, therefore, that the highest and best use of the properties was for assemblage with other tracts into a 200- or 300-acre site, which he felt would be a tract of land of great value for use as an industrial site.

LeJeune defined highest and best use as the use most likely to produce the greatest net return to the property over a given period of time, and explained other assemblages which have taken place in the area, which he considered in making his appraisals. His opinion was that a prudent man would pay $5,000 per acre for each of the five subject tracts of land and he could then make a profit either by leasing or selling the land after assemblage with other parcels.

LeJeune stated the subject pipeline is going to sever all five tracts of land and a permanent installation could not be built over any part of the servitude. Because of the limits the servitude would impose on the property, he found the severance damages would reduce the property value from $5,000 an acre to $4,000. He said it would change the highest and best use of the property from potential high density industrial to a less intense use such as rural residential. LeJeune also said he had discounted the value assigned to each tract by approximately 50% (before arriving at the $5,000-an-acre figure) to compensate for the difficulties of assemblage.

On each of the subject parcels, LeJeune arrived at his estimate of total damages by figuring the acres taken within the permanent servitude, and figuring the acres taken within the temporary construction servitude (assuming that a man was entitled to a 10% return on the value of that property for one year). In arriving at both of these figures he assumed the subject properties were worth $5,000 an acre. He then added these figures to severance damages of $1,000 per acre in each case to estimate total just compensation for each tract.

It was these figures given by LeJeune that the trial court judge followed in making his individual total awards in each of these present cases.

This court is bound by the rule that in expropriation proceedings the trial court’s factual findings as to severance damages and the evaluation of, and the weight given to, the testimony of expert witnesses will not be disturbed on review absent a showing of manifest error. State, Through Dept. of Highways v. Wilson, 372 So.2d 632 (La.App. 1st Cir. 1979).

It has also been established that in cases of this type a correct measure of compensation is the market value of the thing taken, i.e., the price agreed upon by a willing and informed buyer and seller in the condition in which the property stood at the time of the expropriation. The market value of the condemned property means the worth of the land considered in regard to its best and highest use, that is, the manner in which the property can be reasonably used in the not too distant future. State Dept. of Highways v. Dyess, 350 So.2d 1304 (La.App. 3d Cir. 1977).

Although the question of assemblage with other tracts of land (in determining the market value or highest and best use of a parcel) has not been specifically addressed in Louisiana, the issue was addressed in State v. Long, 344 So.2d 754 (Ala.1977), wherein the court stated at 759-760:

“Appellant’s other contention is that part of Morgan’s deposition is inadmissible. Morgan concluded ‘that the Long property and the property known as the Ladd property, which is adjacent thereto, when together, form a prime industrial site.’ The State would have us conclude that Morgan’s testimony is ‘tantamount to testimony about a land use which is purely imaginary and based on pure speculation and conjecture.’ We note that the State’s argument goes to the question of whether the highest and best use of a tract of land may be based on the use the tract in association with adjacent land held by other owners, not whether the tract is capable of being an industrial site assuming the adjacent tract might be included.
“The fact that the adjacent land is held in ownership by another party who may or may not want to sell is not determinative.
‘The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value ... In respect of each item of property that value may be deemed to be the sum which, considering all the circumstances, could have been obtained for it; that is, the amount that in all probability would have been arrived at by fair negotiations between an owner willing to sell and a purchaser desiring to buy. In making that estimate there should be taken into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining. Brooks-Scanlon Corp. v. United States, 265 U.S. 106, 124, 44 S.Ct. 471, 68 L.Ed. 934. The determination is to be made in the light of all facts affecting the market value that are shown by the evidence taken in connection with those of such general notoriety as not to require proof. Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable should be excluded from consideration for that would be to allow mere speculation and conjecture to become a guide for the ascertainment of value — a thing to be condemned in business transactions as well as in judicial ascertainment of truth.’ Olson v. United States, 292 U.S. 246, 256-257, 54 S.Ct. 704, 709, 78 L.Ed. 1236 (1934).
See United States v. Fuller, 409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973).
“‘. . . Whatever an intelligent buyer would esteem as an element of value at the time of taking may be considered.” ’ Blount County v. McPherson, 268 Ala. 133, 137, 105 So.2d 117, 121 (1958), quoting from Alabama Power Co. v. Henson, 237 Ala. 561, 187 So. 718, 721 (1939).
“The State cites no cases in support of its contention, nor does it give any reason to believe that a prospective buyer would not consider the value of this property in respect to adjacent properties. The mere fact that the adjacent property is held in another ownership does not make their combined use speculative and imaginative without other supporting factors. See Olson, supra. The bargaining power of the individual seller would certainly be greater if he owned his tract and the adjacent tract, but that does not make testimony possibility of the use of both tracts in combination inadmissible.”

Severance damages have been deferred by the Louisiana courts as damage to the remaining property because of its separation from the expropriated property and these damages are calculated as the difference between the market value of the remaining property immediately before and the market value immediately after the taking. State Through Dept. of Highways v. Ruckstuhl, 348 So.2d 701 (La.App. 1st Cir. 1977).

Although the burden of proving severance damages rests on the landowner, who must prove such damages with legal certainty by a preponderance of the evidence, there is no fixed or artificial formula by which such damages must be proved. In fact, the informed and reasoned opinion of an expert, corroborated by the facts in the record, may be sufficient proof of a severance damage loss, especially where it is accepted by the trier of fact. State, Through Dept. of Highways v. Wilson, supra.

In the present case the district court judge chose to adopt in toto the testimony of the defendants’ expert witness. To a great extent the testimony of LeJeune rested upon the possibility of combining the subject tracts in this case with other tracts and thereby increasing their market value due to the fact that their highest and best use would then be industrial rather than rural residential. He substantiated his opinion with examples of comparable sales in the area which were made for the purpose of assemblage, some of which were for much greater amounts than the $5,000-per-acre evaluation he was placing on the tracts in the present case. We cannot conclude, therefore, that his consideration of assemblage was too speculative in nature to be considered by the trial court.

Nor can we find any reason in the law of Louisiana for excluding assemblage as a valid means of arriving at damages in expropriation cases in appropriate instances. Not to do so in some cases, such as the present one, would not be fair to the defendants who are to be put in as good a position pecuniarily as they would have been had their properties not been taken. State, Through Dept. of Highways v. Constant, 359 So.2d 666 (La.App. 1st Cir. 1978). It was also the testimony of LeJeune that the properties in question would suffer at least $1,000 per acre of severance damages because industries would tend to avoid attempting to assemble properties on which such a servitude as the one in the present case exists. Although, as noted above, the landowner must show the existence of severance damages to a legal certainty, it was also noted above that an informed and reasoned opinion of an expert may be sufficient proof of severance damages. In the present case we were, as was the trial court, impressed with the testimony of LeJeune in this as well as all other regards, and accordingly hold that the plaintiff succeeded in carrying his burden of proof in the establishment of severance damages. In the district court’s acceptance of his testimony over that of the other experts, moreover, we can find no manifest error.

In regard to the question of attorney fees, the plaintiff argues that since there was offered no proof that the attorney fees have actually been paid, or an obligation to pay incurred, recovery should be defeated, citing Melancon v. Texas Company, 230 La. 593, 89 So.2d 135 (1956). It was noted by the trial court judge in the present case, and we agree, that the amounts tendered to the defendant in the negotiations attempting to acquire the right of way were substantially less than the amounts awarded by the court; therefore, the defendants were entitled to reasonable attorney fees. LSA-R.S. 48:453. The statute also provides that such attorney fees shall not exceed 25% of the difference between the award and the amount deposited in the registry of the court. The trial court judge also noted that in view of the extent and nature of the litigation an award of 25% as attorney fees on the excess award was appropriate. In the case of State, Through Dept. of Hwys. v. Frabbiele, 372 So.2d 234 (La.App. 4th Cir. 1979), this court was faced with a case similar to the present one wherein no evidence was presented in the record related to the effort extended, amount of time involved or other evidence to support the trial court’s award of attorney fees. The court, therefore, remanded the case to the district court for permitting evidence to be offered in connection with the attorney fees, even though the award amounted to exactly 25% of the difference between the total award and the amount deposited in the court’s registry. We find that case distinguishable on the facts from the present case, however, because in Frabbiele, supra, the award of attorney fees amounted to $75,908. In the present case, the attorney fees awarded to each litigant were much smaller amounts and easily recognized as “reasonable” after a review of the long, complex proceedings contained in the entire record. As noted by Judge Boutall in his concurring opinion in Frabbiele, supra, in numerous cases our courts have set attorney fees without requiring an exact measure of proof, and in some cases have used a percentage formula where it seemed justified.

For the reasons assigned, the trial court judgment is affirmed.

AFFIRMED.

SAMUEL, J., concurs with written reasons.

SAMUEL, Judge,

concurring.

I am concerned about the speculative nature of the appraisal upon which the trial court relied, an appraisal given by the defendants’ expert. However, I cannot say the trial court committed error in so relying.

Accordingly, I respectfully concur.

ON APPLICATION FOR REHEARING

PER CURIAM.

Our opinion inadvertently cited LSA-R.S. 48:453, which provides for the awarding of attorney’s fees in expropriation proceedings instituted by the Department of Transportation and Development, State of Louisiana. The correct citation is LSA-R.S. 19:8(A), which provides for attorney’s fees in cases such as this one. Accordingly, the original opinion is amended and corrected to substitute LSA-R.S. 19:8(A) wherever reference is made to LSA-R.S. 48:453. Reference to the statute’s 25% ceiling on attorney fees is deleted, because LSA-R.S. 19:8(A) sets no limits on attorney fees.

In all other respects, the application for rehearing is denied.

REHEARING DENIED.

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

I concur with the Per Curiam insofar as it is applicable to the mentioned statute. However, for the reasons contained in my written dissent, I respectfully dissent from the denial of a rehearing.

SAMUEL, Judge,

dissenting.

My concern about the speculative nature of the defendant appraisal upon which the trial court relied, a concern expressed in my concurrence with the majority opinion and decree which affirmed the judgment appealed from, has been confirmed by plaintiff’s brief in support of its application for a rehearing.

Six tracts are involved. They are relatively narrow and deep and vary in size from 6 to 21.15 acres. Plaintiff’s two experts testified these tracts had a highest and best use of residential or small community commercial and a market value of $1,700 per acre, according to one expert, and $2,000 per acre, according to the other. Basing his conclusion on the possibility of assemblage, defendants’ expert was of the opinion the market value was approximately $10,000 per acre if the tracts were combined with 21 additional contiguous tracts as a site for an industrial complex composed of between 250 and 300 acres; in his view the total assembled tract would have a highest and best use as an industrial site which has a much higher value than either residential or small commercial sites. The trial judge and the majority of this panel set the value at $5,000 per acre, or two and one-half times the value placed on the property by the higher plaintiff appraisal. The defendant expert did not disagree with the $2,000 figure if the highest and best use was residential or small commercial.

It appears the theory of assemblage is res nova in Louisiana. It has been recognized by other courts which hold assemblage is a proper consideration in determining value in expropriation matters, but only if the defendant shows there is a reasonable probability the claimed assemblage can be accomplished in the reasonably near future, and the burden of such proof is on the defendant.

I see no reason why the theory, with sufficient restrictions so as to prevent it from being too remote and speculative, should not be applicable in Louisiana. Thus, the question presented is whether these present defendants have shown it is reasonably probable the assemblage they rely on can be accomplished in the reasonably near future to the extent that, at the time of the taking, an informed buyer would be willing to pay the assemblage increase in price over the value of each tract considered separately. In my view, the evidence contained in the record quite clearly fails to make such a showing. In fact, the showing is to the contrary.

The only evidence offered by the defendants regarding assemblage was the testimony of their expert. While there is a demand for large industrial sites in the area, the record shows there are at least four such sites currently available. The record also shows that the approximate 28 tracts needed for the proposed assemblage are owned by well in excess of 200 persons. Any one or more of those owners effectively could prevent assemblage by refusing to transfer their interests, a risk unlikely to be taken by a purchaser at the time of the taking. Nor is there any showing that any of the owners, even including the defendant owners themselves, would be willing to sell at any price; no attempt has been made to assemble the hypothetical tract. In addition, defendants’ expert testified the presence of a pipeline servitude would prevent the tracts in suit from being used as an industrial site. But most or many of the tracts with which the instant six tracts would be combined already are burdened with such servitudes.

Accordingly, I respectfully dissent from the majority’s refusal to grant plaintiff a rehearing limited to the issue of assemblage.

      . Modified on other grounds, 369 So.2d 699.

      . See United States v. Powelson, 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390; Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236; City of Indianapolis, Dept. of Met. Dev. v. Heeter, 171 Ind.App. 119, 355 N.E.2d 429; State v. Long (Ala.) 344 So.2d 754.