text:
    The STATE of Florida, Appellant, v. Jorge HERRERA, Appellee.
    No. 81-193.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Upon the appellee’s confession of error, the order under review by this appeal is reversed and the cause is remanded to the trial court with directions to reinstate the information charging the appellee with leaving the scene of an accident involving personal injury [§ 316.027(2), Fla.Stat. (1979)]. The law is clear that such an offense is a felony, and that the circuit court below, not the county court, has ex-elusive jurisdiction to try a criminal prosecution for said felony. Sclafani v. County of Dade, 323 So.2d 675 (Fla.3d DCA 1975); Art. V, § 5, Fla.Const.; § 26.012(2)(d), Fla. Stat. (1979); see also Watkins v. Morris, 179 So.2d 348 (Fla.1965). This reversal, however, in no way precludes the chief judge of the circuit court, should he so choose, to assign temporarily an otherwise qualified county court judge to sit as a circuit court judge for the purpose of trying this case upon remand. See e.g., State ex rel. Treadwell v. Hall, 274 So.2d 537 (Fla.1973); Rodgers v. State, 325 So.2d 48 (Fla.2d DCA 1975), cert. dismissed, 342 So.2d 1103 (Fla. 1977).

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James HOLMAN, Jr., Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. AH-188.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.
    Rehearing Denied Jan. 7, 1982.
    James Holman, Jr., pro se.
    No appearance for respondent.
   PER CURIAM.

In this petition for writ of mandamus, petitioner alleges that the Parole and Probation Commission improperly calculated his presumptive parole release date. In Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1 DCA 1981), this Court held that the final action of the Commission establishing a prisoner’s presumptive parole release date was reviewable by direct appeal pursuant to Section 120.68, Florida Statutes (1979). One of the requirements that must be met before a writ of mandamus will issue is that no other adequate remedy exists. Shevin ex rel. State v. Public Service Commission, 333 So.2d 9 (Fla.1976). This Court may not “... employ an extraordinary remedy to assist a litigant who has foregone an ordinary one which would have served adequately.” State ex rel. Dept. of General Services v. Willis, 344 So.2d 580, 592-93 (Fla. 1 DCA 1977). Since an adequate and ordinary remedy by direct appeal is available to challenge the propriety of the Commission’s action, this petition must be denied.

We note that if the date of final agency action is included in a petition and if that date is within thirty days of the filing of the petition, this Court can treat the petition as a notice of appeal, see Fla.R.App.P. 9.040(c), and ultimately consider the cause on its merits. However, although petitioner alleges that the Commission reviewed his presumptive parole release date pursuant to Section 947.173, he fails to state the date of the Commission’s final action.

Therefore, the petition for writ of mandamus is DENIED.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.


author: FERGUSON, Judge.

text:
    G. C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-869.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   FERGUSON, Judge.

G.C., a juvenile, was adjudicated delinquent as an aider and abettor to attempted burglary.

Accepting all of the evidence in a light most favorable to the state at best there is proof that (1) G.C. knew that Delgado was going to burglarize an apartment, (2) G.C. followed Delgado to the scene of the crime, (3) G.C. stood back at least fifteen feet and watched Delgado remove jalousie glasses from the window of the apartment. The evidence before the court is less than 'that necessary to prove that G.C. aided and abetted in the attempted burglary.

In order for one person to be guilty of a crime physically committed by another under Section 777.011, Florida Statutes (1979), it is necessary that he not only have a conscious intent that the criminal act shall be done, but further requires that pursuant to that intent he do some act or say some word which was intended to and which did incite cause, encourage, assist or induce another person to- actually commit the crime. Ryals v. State, 112 Fla. 4, 150 So. 132 (1933); J.L.B. v. State, 396 So.2d 761 (Fla. 3d DCA 1981); R.W.G. v. State, 395 So.2d 1279 (Fla. 2d DCA 1981); Chaudoin v. State, 362 So.2d 398 (Fla. 2d DCA 1978).

The state implores that the necessary elements of intent and act may be inferred — because G.C. knew that Delgado was going to commit a crime and was present during Delgado’s attempt, it is established beyond and to the exclusion of any reasonable doubt that G.C. was a “lookout”. Where two or more inferences must be drawn from the direct evidence, then pyramided to prove the offense, the evidence lacks the conclusive nature necessary to support a conviction. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923). Presence at the scene, without more, is not sufficient to establish either intent to participate or act of participation. J.L.B. v. State, supra; J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979). Mere knowledge that an offense is being committed is not equivalent to participation with criminal intent. See, e.g., United States v. Martin, 533 F.2d 268 (5th Cir. 1976). Knowledge that a crime is going to be committed and presence at the scene, without more, is generally insufficient to establish aiding and abetting. See, e.g., Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919, 925 (1949); Baker v. United States, 395 F.2d 368 (8th Cir. 1968); Ramirez v. United States, 363 F.2d 33 (9th Cir. 1966).

Reversed with instructions to discharge the juvenile.


author: DOWNEY, Judge.

text:
    Anthony Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 81-288.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was informed against under the Trafficking Statute for possession of cocaine in the amount of 28 grams or more, contrary to Section 893.135(l)(b)(l), Florida Statutes (1979). Violation of that statute constitutes a felony of the first degree, punishable by a term of imprisonment not exceeding thirty years. The jury found appellant guilty of the lesser included offense of possession of cocaine with intent to sell or deliver. That lesser offense is a prohibited act under Section 893.13(l)(a). Violation of that statute constitutes a felony of the second degree punishable by a term of imprisonment not exceeding fifteen years.

The judgment appealed from adjudicates appellant guilty of “Trafficking in Cocaine” and sentences him to fifteen years in prison.

We find no error demonstrated in any respect in this case except as to the adjudication, which is inaccurate because it does not coincide with the verdict the jury returned.

In view of the discrepancy between the jury verdict and the court’s adjudication, we reverse the judgment and remand the cause with directions that the trial court enter an adjudication pursuant to the jury verdict. If it is so inclined, the trial court may, in its discretion, reconsider the sentence it imposed upon the appellant.

REVERSED AND REMANDED, with directions.

ANSTEAD and DELL, JJ., concur.


text:
    Charles ENGLE, a/k/a Donald Halpin, Appellant, v. STATE of Florida, Appellee.
    No. 81-143.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1981.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Charles Engle, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment and sentence is affirmed. However, that portion of the court’s order requiring appellant to pay money to the Victim’s Crime Compensation Fund is stricken because the appellant was found insolvent by the trial court. Brown v. State, 400 So.2d 510 (Fla.2d DCA 1981).

SCHEB, C. J., and GRIMES and CAMPBELL, JJ., concur.


text:
    Thomas P. QUINN, Appellant, v. CITY OF POMPANO BEACH, a municipal corporation, Appellee.
    No. 79-2550.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1981.

      Robert T. Clelland, Jr., Fort Lauderdale, for appellant.
    Marion J. Radson and Donald C. Roberge, Pompano Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment in an action for attorney’s fees. We find that under Reid v. Johnson, 106 So.2d 624 (Fla. 3d DCA 1958), the trial court correctly determined that the initial $5,000 retainer was an advance payment against hourly charges rather than an independent fee. Moreover, since conflicting evidence was presented on the factual issue of whether appellant was authorized to render services in preparation for appellate review, we also uphold the trial court’s finding that appellant was not entitled to recover for efforts and costs expended in connection therewith.

AFFIRMED.

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Johnny STELL, Appellee.
    No. 80-2110.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1981.
    David H. Bludworth, State Atty., Moses Baker, Jr., Asst. State Atty., and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellant.
    Domenic L. Grosso, Boca Raton, for ap-pellee.
   HERSEY, Judge.

This is an appeal by the state from orders holding that an amended Information was a nullity because it was filed without leave of court.

On October 20, 1980 an Information was filed charging appellant, in Count I, with aggravated battery by using a deadly weapon (a motor vehicle) and, in Count II, with leaving the scene of an accident which resulted in personal injury. These crimes allegedly occurred on October 10, 1980.

On November 20, 1980, the state filed an “amended” Information which added a third count of “criminal mischief” alleging that, on October 10, 1980, appellant also smashed a plate glass window with a vehicle. This “amended” Information was signed and sworn to by the prosecutor and then filed with the clerk. The two original counts were unchanged. The case had not yet been set for trial.

At a hearing on November 21, 1980, the state advised the court and the appellant that the amended Information had been filed.

The trial court thereupon ruled that the amended Information was a nullity because Rule 3.140(j), Florida Rules of Criminal Procedure required that leave of court be obtained to amend an Information. The court further determined that the additional charge of criminal mischief contained in the amended Information was prejudicial to appellant.

Rule 3.140(j), Florida Rules of Criminal Procedure provides that “[a]n information upon which the defendant is to be tried ... may be amended on the motion of the prosecuting attorney or defendant at any time prior to trial because of formal defects.” (emphasis added). Under this rule, a formal defect (such as an incorrect corporate name) may be cured by amendment of the Information upon which the defendant is to be tried without the filing of a new Information which has been signed and sworn to. See Lackos v. State, 339 So.2d 217 (Fla.1976).

This rule does not circumscribe the state’s power to file a new and separate Information. Rather, it provides a method for allowing amendment of a formal nature without the necessity of the prosecutor again signing, swearing to, and re-filing the Information as was once required. Alvarez v. State, 157 Fla. 254, 25 So.2d 661 (Fla.1946).

The filing of an “amended” Information which has been signed and sworn to has the legal effect on the original Information of a nolle prosequi. The “amended” Information supplants the original one and, pursuant to Rule 3.160, Florida Rules of Criminal Procedure, the defendant must be re-arraigned. The state may nol-pros an Information within its discretion at any time subject to the limitations discussed below. Further, there is no requirement that the trial court’s permission be obtained before the state may refile such an Information. State v. Darnell, 335 So.2d 638 (Fla. 4th DCA 1976).

That is not to say, however, that the state’s power to nol-pros and refile Infor-mations is unbridled. It is in fact limited by practical considerations. First, the bar against double jeopardy would prevent the state from nol-prossing and refiling an Information after the jury has been sworn. Second, the time constraints of the speedy trial rule would, in effect, prohibit the state from abusing its power by constantly adding charges or changing the substance of charges contained in the Information. This is so because each time the state files a new Information, the defendant is entitled, to be rearraigned and in most circumstances is entitled to additional time to prepare his defense. Since the need for additional time results from the state’s action, continuances are “charged” to the state. See State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla. 1st DCA 1975), cert. denied, 334 So.2d 609 (Fla.1976). Thus, the state cannot indiscriminately nol-pros and refile Informations without adverse consequences. Further, the intent and effect of the speedy trial rule cannot be avoided by the state by entering a nol-pros to a criminal charge and then filing a new Information based on the same conduct. Fla.R.Crim.P. 3.191(h)(2).

Because leave of court is not a condition precedent to the filing of an “amended” Information, except to the limited extent encompassed by Rule 3.140(j), as previously explained, we reverse the orders which declared the “amended” Information a nullity and remand for further appropriate proceedings.

REVERSED AND REMANDED.

BERANEK, J., and OWEN, WILLIAM C., Jr., Associate Judge (Retired), concur.


text:
    In the Interest of B. F., a child.
    No. 81-540.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

REVERSED AND REMANDED for further proceedings on the authority of M. J. v. State, 399 So.2d 996 (Fla. 1st DCA 1981).

DOWNEY, ANSTEAD and DELL, JJ., concur.


author: MARCUS, Justice. CALOGERO, Justice,

text:
    Joseph H. KAVANAUGH, et al. v. Marian Mayer BERKETT, et al.
    No. 80-C-1526.
    Supreme Court of Louisiana.
    June 22, 1981.
    Order for Motion to Dismiss Aug. 24, 1981.
    John Dale Powers, Michael H. Rubin, of Sanders, Downing, Kean & Cazedessus, Baton Rouge, for plaintiff-applicant.
    Ralph I. Kaskell, Jr., of Deutsch, Kerri-gan & Stiles, New Orleans, for defendant-respondent.
   MARCUS, Justice.

In 1967, Joseph H. Kavanaugh and Bil-wood Smith began negotiating with Mrs. Marian Mayer Berkett to lease a certain thirteen-acre tract of unimproved land fronting on the South Acadian Thruway adjacent to Interstate-10 in East Baton Rouge Parish. Mrs. Berkett, a New Orleans attorney, owned the land with other members of her family, namely, Maurice J. Mayer, Jr., Rhea Mayer Cohn and Lois Brier Mayer and her two minor children, Charles Denis Mayer and Margaret Mayer. Mrs. Berkett prepared the lease in which the lessors agreed to permit the lessees “to mortgage” the leased property for the financing of the physical improvements placed on the property provided the mortgage required no personal liability on the part of the lessors and the lessees deposited with an escrow agent a certain amount of government bonds as security. On January 12,1968, Lois Brier Mayer, natural tutrix of her minor children, obtained a court order authorizing her to lease the minors’ interest in said property under the terms and conditions set forth in the attached lease and naming Mrs. Berkett as her agent-in-fact with authority to execute “all documents and papers necessary to effect the lease.” The lease was signed on April 29, 1968. Bilwood Smith’s interest was subsequently assigned to Robert B. Tudor, Jr.

Shell and Gulf service stations and a Sambo’s restaurant were constructed on the property without the need of a mortgage; however, the financing for the construction of a Smuggler’s Inn restaurant required the mortgage of the land for the proposed restaurant. A series of negotiations between lessees and Mrs. Berkett were held to formulate a mortgage that would satisfy both Mrs. Berkett and the lender. A stalemate was reached as Mrs. Berkett made it clear that the lessors would not execute any mortgage containing a confession of judgment and waiver of notice and appraisement.

Lessees then brought this action against lessors seeking a declaratory judgment interpreting the lease to require the lessors to sign a “commercially acceptable in rem mortgage” on the leased property and specifically to require them to sign the mortgage submitted by lessees “under the Savings Life Insurance Company commitment.” Lessees further prayed for damages for anticipatory breach of the contract. At trial, it was established that after much delay caused by the lessors’ refusal to sign a mortgage in favor of Savings Life Insurance Company to finance construction of the Smuggler’s Inn, the lessees obtained financing through another lender under more onerous terms. The lessors had refused to sign the mortgage because it contained a confession of judgment and waiver of notice and appraisement.

The trial judge rendered judgment in favor of lessees and against the lessors, interpreting the words “to mortgage” as set forth in the lease agreement to mean a “commercially feasible mortgage” and awarding damages in the amount of $147,-000 for the lessors’ failure to execute such a mortgage. Lessors appealed.

The court of appeal reversed, holding that because minors were involved, the execution of the lease, on behalf of the minors and by the majors, required only the execution of a “simple mortgage” by the lessors, that is, one not containing a confession of judgment and waiver of notice and ap-praisement. Therefore, since the lessors were not obligated to execute a mortgage containing a confession of judgment and waiver of notice and appraisement, lessors could not be held liable in damages for failure to execute the mortgage in favor of Savings Life Insurance Company which contained those clauses. On lessees’ application, we granted certiorari to review the correctness of that decision.

The ninth article of the lease stated in pertinent part:

(A) LESSEE shall not place any mortgage, lien, privilege, or encumbrance on or against the leased property or permit any of its creditors to do so without LESSOR’S prior written consent.
(B) Upon request and during the primary term (first twenty years) of this lease, LESSOR agrees to permit LESSEE to mortgage the leased property or a portion thereof for the purpose of providing initial interim or initial permanent financing of the cost of physical improvements placed or to be placed on the property covered by the mortgage, provided the LESSEE first satisfies the following terms and conditions:
1 — The mortgage shall involve and shall require no personal or direct obligation on the part of the LESSOR and shall bear only against LESSOR’S land and more specifically, against that portion of the leased property specifically mortgaged.
2 — Before any mortgage is placed on any of the leased property for initial interim or initial permanent financing for the purposes described above, LESSEE shall deposit with an escrow agent, fulfilling the requirements set forth in Sub-paragraph 3 of this Article, negotiable United States Bonds having a market value at the time of the deposit in escrow equal to or in excess of an amount referred to in this lease as the Security Amount, and the Security Amount shall be determined in the following manner:

Although the lessors’ prior written consent is needed before the lessees can place a mortgage on the property in question, the lease requires the lessors to permit the lessees “to mortgage” the leased property for financing the cost of physical improvements placed on the property provided the mortgage is an in rem mortgage, that is, one that bears only against that portion of lessors’ land specifically mortgaged and involves no personal obligation on the part of the lessors, and the lessees deposit with an escrow agent a certain amount of government bonds as security.

Lessees contend the term “to mortgage” as used in this lease means a “commercially acceptable in rem mortgage” whereas lessors contend the term means only a “simple mortgage,” that is, one not requiring a confession of judgment and waiver of notice and appraisement. Therein lies the controversy.

Joseph H. Kavanaugh testified that the sole purpose he and Bilwood Smith leased the property was to develop it commercially. To do this, it was necessary to be able to mortgage the property as security for loans. He stated that Mrs. Berkett was fully aware of their intended use of the property and knew the loans would be made by commercial lenders. Mrs. Berkett testified that she was aware that the property was going to be developed commercially but insisted that the right “to mortgage” given in the lease was intended to be very restrictive and that she had agreed only to permit a “simple mortgage” as provided by the civil code. Mr. Kavanaugh testified that they never would have signed the lease had Mrs. Berkett indicated that the lessors would not allow a mortgage containing a confession of judgment and waiver of notice and appraisement because only a mortgage containing those clauses would be acceptable to commercial lenders. Mrs. Berk-ett stated that she was never asked to confess judgment or waive any rights. She further stated that she would never have allowed the lease to contain the words “commercially acceptable in rem mortgage” and did not “agree to give them whatever any lender would demand[,] ... give carte blanche [or] ... write out a blank check.” Mr. Kavanaugh testified that Mrs. Berk-ett’s actions, conversation and correspondence made it clear that she did not intend to allow a mortgage under any circumstances. He further stated that he had made arrangements with a bank to transfer a certificate of deposit into an escrow account immediately upon the execution of a mortgage.

Four attorneys were qualified by the court as experts in the field of real estate mortgages. All testified to the effect that commercial lenders require certain usual and customary clauses in mortgages, including a confession of judgment, pact de non alienando and waiver of appraisal, in order to permit executory process and that failure to include these clauses would render a mortgage unacceptable to them. They further testified that lawyers using the term “mortgage” consider it to include all the usual and customary security clauses, including a confession of judgment, pact de non alienando and waiver of appraisal.

Agreements legally entered into have the effect of laws on those who formed them and must be performed with good faith. La.Civ.Code art. 1901. Courts are bound to give legal effect to all such contracts according to the true intent of the parties. La.Civ.Code art. 1945. Terms of art or technical phrases are to be interpreted according to their received meaning with those who profess the art or profession to which they belong. La.Civ.Code art. 1947. All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act. La. Civ.Code art. 1955.

Applying these principles of interpretation to the lease in question, we conclude that the term “to mortgage” means a mortgage containing the usual and customary security clauses such as a confession of judgment and waiver of notice and ap-praisement. It is clear from the lease itself, as well as the testimony of Mr. Kavanaugh and Mrs. Berkett, that the lessees intended to develop the property commercially and that the lessors were aware of this. All four experts testified that lawyers using the term “mortgage” consider it to include the usual and customary security clauses. Furthermore, this court has observed that “undoubtedly the prevailing custom in the execution of conventional mortgages in this state is to include therein the pact de non alienando, confession of judgment, and waiver of appraisement.” Gumpert v. Signal, 180 La. 59, 156 So. 174 (1934). While we agree with the lessors that they are not required to accept any mortgage submitted by any commercial lender, we hold that under the lease, they are obligated to permit the lessees to mortgage the property with an in rem mortgage containing the usual and customary security clauses such as a confession of judgment and waiver of notice and appraisement.

The court of appeal held that because minors were involved at the time the lease was signed, the lessors were required only to execute a “simple mortgage.” This decision was based on jurisprudence that authority to execute a “mortgage” where minors and interdicts are involved confers only the authority to execute a mortgage not containing a confession of judgment and waiver of notice and appraisement. See Kling Mortgage Investment Co. v. Donovan, 178 La. 119,150 So. 850 (1938); Scottish-American Mortgage Co. v. Ogden, 49 La.Ann. 8, 21 So. 116 (1896); Hendry v. Nicoiosi, 126 So. 21, 71 (La.App. 1st Cir. 1961). In the cited cases, the tutor or curator received a general court order authorizing him to borrow money and execute a mortgage on behalf of minors and interdicts. These cases held that the court order did not authorize the execution of a mortgage containing a confession of judgment, pact de non alienando and waiver of appraisal and accordingly held such provisions unenforceable.

The instant case is clearly distinguishable. In her petition for authority, Lois Brier Mayer, natural tutrix of the minors, stated that each minor owned an undivided one-sixth interest in the property and that she believed it would be “to the minors’ advantage to enter into both the option to lease and the lease under terms and conditions offered and ... that the adults who are co-owners in indivisión with the minors and who had a larger interest in the property, believe that both agreements are highly advantageous to all concerned.” A copy of the lease was attached to the petition as an exhibit. The ninth article of the lease makes it clear that should the property be mortgaged, the minors, as lessors, would incur no personal liability. Additionally, the minors’ interest in the property itself would be protected by the deposit of government bonds in an escrow account as security. The court order signed pursuant to the petition for authority specifically authorized the tutrix to lease the minors’ interest in the property under the “terms and conditions set forth in the petition and exhibits attached.” The lease, attached as an exhibit, included the provision in which the lessors agreed to permit the lessees “to mortgage” the leased property. The order further named Mrs. Berkett as her attorney-in-fact with authority to execute “all documents and papers necessary to effect the lease.”

In view of the above facts, we conclude that the judge’s order authorized not only the signing of the lease but also the mortgaging of the property with the usual and customary security clauses, including a confession of judgment and waiver of notice and appraisement. The court of appeal erred in holding otherwise.

Moreover, the two lessors who were minors at the time the lease was executed have accepted rental payments under the lease since reaching majority. Their acceptance of rent has clearly validated the lease in its entirety, including the mortgage provisions, by ratification. La.Civ.Code arts. 1785, 2228.

In conclusion, we hold that the lessors were obligated to permit the lessees to mortgage the property with an in rem mortgage containing the usual and customary security clauses such as a confession of judgment and waiver of notice and ap-praisement. By refusing to do so, the lessors breached the lease agreement and are liable in damages. Since the court of appeal concluded that the lessors were not obligated to execute such a mortgage and were therefore not liable in damages for their failure to do so, the court did not reach the issue of damages. We therefore consider it more appropriate to remand the case to the court of appeal to review the trial court’s award of damages.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the court of appeal for further proceedings consistent with the views herein expressed.

CALOGERO, J., dissents and assigns reasons.

LEMMON, J., dissents.

CALOGERO, Justice,

dissenting.

The majority decision rests upon a determination that confession of judgment and waiver of notice and appraisement are usual and customary provisions in a mortgage; so that defendants, in agreeing to mortgage or permit lessees to mortgage, are charged with having agreed, impliedly, to permit execution of an in rem mortgage containing those provisions. While I would probably find it difficult to disagree with that position, I find it unnecessary to make that determination, for I would conclude that defendants/lessors simply were not required to permit or participate in a mortgage such as the one drawn by the Savings Life Insurance Company. That mortgage contained provisions which were clearly not compatible with the terms of the lease.

Essentially, the lease allows lessees to mortgage the property, with prior written consent of lessors, for the purpose of providing interim or permanent financing of the cost of physical improvements to be placed upon the property if certain conditions are first met. These conditions include the limitation that there be no personal or direct liability on the part of the lessors and that an escrow fund be established for the purpose among other things of reimbursing lessors should lessees default on the loan secured by the mortgage and lessors have to pay the loan or risk loss of the property.

As the majority notes, plaintiffs developed some of the property without the need for lessors to agree to a mortgage. They then wanted to construct a Smuggler’s Inn Restaurant for which they needed a mortgage to secure financing. Plaintiffs presented the mortgage at issue to defendants and requested execution. Lessors refused, contending that their obligation was only to permit lessees to mortgage the property (or, inferentially, to join lessees in mortgaging it) and not to go along with a mortgage with an assortment of provisions at variance with the terms of the lease.

The tendered mortgage required essentially that lessors:

(1) waive all the statutory rights under Code of Civil Procedure Articles 2293, 2331, 2332, 2336, 2639, 2721, 2722, 2723, and 2724.
(2) confess judgment on the debt for construction secured by the mortgage
(3) subordinate their rights as lessors to the rights of the mortgagee
(4) assign the rent and rights to rent for the mortgaged property to the mortgagee
(5) mortgage the property to secure payment of insurance premiums, taxes and municipal charges in addition to the loan principal
(6) assign to the mortgagee all insurance payments which might be received for losses sustained, which could be applied at the mortgagee’s option to the principal of the note whether or not the lessees were in arrears in repaying the loan
(7) assign to the mortgagee all awards received under the exercise of eminent domain, which awards could be applied to the principal of the note at the option of the mortgagee.

Our previous decisions concerning the authorization to execute a mortgage have been within the context of a minor or interdict being the grantor, the pertinent inquiry focusing on the question of court authorization. In those cases where the grant of authority did not specifically authorize the tutor/curator to waive the protections afforded by the laws of the state we construed the court authorization for the tutor or curator “to mortgage” to permit only a mortgage within the scope of the Civil Code and Code of Civil Procedure. E.g. Kling Mortgage Investment Co. v. Donovan, 178 La. 119, 150 So. 850 (1933); Scottish-American Mortgage Co. v. Ogden, 49 La.Ann. 8, 21 So. 116 (1896). The majority has found that adequate court authorization existed and also notes that the minors have now reached majority and have continued to accept rents. Nevertheless, I find the cited cases offer guidance in interpreting the term “to mortgage” when that term is used without qualification.

Some of the provisions of the submitted mortgage are contrary to, or inconsistent with those terms of the lease concerning lessors’ obligation to allow lessees “to mortgage” the property. The escrow provision of the lease refers to lessors’ receiving notice of the default on the mortgage and is in contemplation of lessors being called upon to pay the mortgage, the provision being designed to prevent sale, seizure or foreclosure of the property. The provisions contained in the submitted mortgage, at cross purposes with the escrow provision of the lease agreement, require lessors to waive demand for payment, notice of seizure and delay before sale. Waiver of these important statutory rights might expose lessors to the loss of their property before they become aware that lessees have defaulted on the note secured by the mortgage, and is contrary to the evident intent of the parties to the lease which contemplates that the lessors may fully protect themselves by being afforded a timely opportunity to use the escrow fund to keep the debt from being in default.

Lessees argue (and the trial court agreed) that lessors agreed to accept a commercially feasible mortgage. Lessees further contend that the pro-lender provisions are generally found in mortgages at the marketplace, and mortgages without all these waivers are generally not available. However, the terms of the lease do not provide that lessors will sign whatever mortgage as, at any given time, lessees find available in the money marketplace.

Code of Civil Procedure Article 2721 concerning executory process states that “[t]he sheriff shall serve upon the defendant a written notice of the seizure of the property.” The Official Revision Comment states that this paragraph prevents a waiver of the sheriff’s notice in all cases. The jurisprudence has interpreted the article in a manner consistent with the Comment. Neff v. Ford Motor Credit Co., 347 So.2d 1228 (La.App. 1st Cir. 1977); General Motors Acceptance Corp. v. Henderson, 228 So.2d 323 (La.App. 3rd Cir. 1969); Mack Trucks, Inc. v. Magee, 141 So.2d 85 (La.App. 1st Cir. 1962). In Buckner v. Carmack, 272 So.2d 326 (La.1973), this Court upheld the constitutionality of the Louisiana scheme of executory process. However, the Court specifically stated that service of the writ of seizure and sale cannot be waived. Not only have the lessors not agreed in the lease to waive this notice, but they surely cannot be construed to have done so in light of Buckner.

The “to mortgage” provision of the lease states that the mortgage will finance the cost of physical improvements to be placed upon the leased property. The tendered mortgage disregards this limitation and provides that the mortgage secures not only the cost of physical improvements but also any sums advanced for the payment of insurance premiums on the building constructed and taxes and municipal charges levied against it. These items clearly are not costs of physical improvements.

Finally, Scottish-American, supra, and Kling, supra, held that the term “mortgage,” without more, means a mortgage as envisioned by the Civil Code and Code of Civil Procedure. “Mortgage” in those codes is attended by significant rights designed to protect the mortgagor against the loss of his property. Just as a waiver of those rights must be spelled out with particularity in the mortgage, the intention to waive those same rights must be specifically included in the instrument evidencing the agreement “to mortgage” the property. Waivers contained in the mortgage are conspicuously absent from the lease agreement. These waivers cannot be so much as inferred in the lease when one construes the agreement “to mortgage” with the protective provisions of the escrow plan.

Normally the lender is in a position to dictate the terms of a mortgage: interest rate, duration, waiver of many and sundry Codal and statutory provisions, and virtually anything else not contrary to public policy. The borrower either accepts the lender’s terms or he doesn’t get the loan. The lessor who has simply agreed to mortgage or to permit the mortgaging of his leased property, however, as in this case, is in an entirely different position from the lessee/borrower. It is not necessarily in the interest of the lessor for the lessee to mortgage the property. In fact, he may prefer not to have the lessee do so, especially not on terms entirely dictated by the lender. This is so even where, as in this case, he is conventionally obligated to allow the lessee to mortgage the property. It is therefore not unnatural for the lessor/mortgagor to stand firm on the limitations of his obligation. That is what defendants in this case have done.

Defendants/lessors did not agree in the lease to enter into or permit entering into such a mortgage as may at any given time be “commercially feasible,” a concept governed only by the dictates of the prospective lender, the need of the lessee/borrower and the state of the money market. Such an indefinite obligation on the part of the lessors could hardly have been contemplated by these exacting defendants who, with the escrow and other protective provisions, begrudgingly agreed to permit lessees “to mortgage.” “Mortgage” has a specific meaning in our law and is attended by rights and obligations accorded by the codes. A waiver of rights is not to be presumed.

Implicit in the majority’s remand to the Court of Appeal to review the trial court’s award of damages is a finding that defendants were obligated to agree to the tendered mortgage. Because I believe that mortgage contained provisions irreconcilably inconsistent with the lease, I respectfully dissent.

ORDER

On joint motion of all litigants, this suit is hereby dismissed with prejudice.

      . 387 So.2d 1270 (La.App. 1st Cir. 1980).

      . 390 So.2d 1344 (La.1980).

      . Although the majority opinion sets forth a portion of the Ninth clause of the lease, I in-elude that portion along with what I consider to be other pertinent parts of the same clause. I have underscored areas of particular relevance to this dissent.
      “(A) LESSEE shall not place any mortgage, lien, privilege, or encumbrance on or against the leased property or permit any of its creditors to do so without LESSOR’S prior written consent.
      “(B) Upon request and during the primary term (first twenty years) of this lease, LESSOR agrees to permit LESSEE to mortgage the leased property or a portion thereof for the purpose of providing initial interim or initial permanent financing of the cost of physical improvements placed or to be placed on the property covered by the mortgage, provided the LESSEE first satisfies the following terms and conditions:
      “1 — The mortgage shall involve and shall require no personal or direct obligation on the part of the LESSOR and shall bear only against LESSOR’S land and more specifically, against that portion of the leased property specifically mortgaged.
      “2 — Before any mortgage is placed on any of the leased property for initial interim or initial permanent financing for the purposes described above, LESSEE shall deposit with an escrow agent, fulfilling the requirements set forth in Subparagraph 3 of this Article, negotiable United States Bonds having a market value at the time of the deposit in escrow equal to or in excess of an amount referred to in this lease as the Security Amount, and the Security Amount shall be determined in the following manner:
      ******
      “4 — The Security Amount deposited in escrow shall be a security, but not the sole security, to insure the LESSEE’S promise to hold LESSOR harmless and to indemnify him against loss by reason of the failure of LESSEE to fulfill any of its obligations under this lease, including but not limited to, his obligation to indemnify LESSOR for loss of any or all portions of the leased property because of foreclosure of any mortgage or seizure growing out of any lien, privilege or encumbrance which LESSEE may have placed or permitted to be placed by its creditors on the leased property without or with the LESSOR’S consent.
      “5 — Should LESSOR suffer a loss of the leased property or any portion thereof by reason of a mortgage by LESSEE or any lien, privilege, or encumbrance which LESSEE may have placed thereon, or permitted its creditors to place thereon, or should LESSOR receive notice of the default of said mortgage or should LESSOR pay, or be called upon to pay, any such mortgage, lien, privilege or encumbrance to prevent sale, seizure or foreclosure on or of the leased premises or a portion thereof by creditors of the LESSEE, then: ■

      . C.Civ.P. art. 2293 provides that the sheriff serve a judgment debtor with prompt notice of seizure of property.
      C.Civ.P. art. 2331 requires publication of notice of the sale of property which has been seized.
      Under C.Civ.P. art. 2332 the seized property must be appraised prior to the sale and C.Civ.P. art. 2336 prohibits the sale of the property for less than two-thirds of its appraised value.
      According to C.Civ.P. art. 2639, before issuing a writ of seizure and sale, the clerk must issue upon the defendant a demand for payment of the amount due and the defendant has three judicial days in which to pay in order to prevent the issuance of the writ. The article prohibits the debtor’s waiving this demand in the act of mortgage.

        Articles 2721 through 2724 repeat the requirements of delay of seizure, advertisement of the sale and appraisal of the property for executory process.

      . By executory process a creditor can effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage evidenced by an authentic act importing a confession of judgment. C.Civ.P. art. 2631 et seq. The mortgage presented to lessors is designed to support executory process.


author: LEAR, Justice Ad Hoc.

text:
    STATE of Louisiana v. David S. SMITH.
    No. 81-KA-0748.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Kenneth Sanders, Asst. Dist. Attys., for plaintiff-appellee.
    Robert T. Garrity, Jr., and Joseph Montgomery, Metairie, of Indigent Defender Bd., for defendant-appellant.
   LEAR, Justice Ad Hoc.

Defendant David S. Smith was charged by bill of information with the crime of simple burglary, a violation of La.R.S. 14:62. On October 14 and 15, 1980, he was tried before a six person jury which found him guilty of attempted simple burglary. Defendant now appeals on the basis of six assignments of error, five of which are argued.

FACTS

According to testimony by Deputy Art Scudari, on the evening of July 21, 1980, he was called, while on patrol, to St. Martin School for a possible burglary in progress. When he and his partner arrived at the school they began checking the outside of the building. The deputies observed the defendant about a block and a half away, walking from the area of the cafeteria, to the residences across the street. As the defendant reached the sidewalk across from the school his walk became rapid. Deputy Scudari and his partner, Smith, identified themselves and asked the defendant to stop. At that, defendant ran into the back yard of 403 Herring Road. As the yard was enclosed, defendant jumped the fence and hid among the shrubs and bushes. The growth made it too dark to locate the defendant, so the deputies notified police headquarters to send the canine unit.

Deputy Val Penouilh arrived with his German shepherd. When the dog was taken to the crime scene, he picked up a scent which led him to the back yard of 405 Herring Road where the defendant was located. The dog jumped defendant and bit him several times. After the dog was called off, the injured defendant was handcuffed and put into a patrol car. At that time defendant made an inculpatory statement, after which he was hospitalized for his wounds, then incarcerated.

On the ground, outside of the cafeteria door of the school, police found pot pies and small pizzas which were the apparent objects of the attempted burglary.

In Assignment of Error No. 1, defendant argues that the trial court erred in admitting into evidence an oral statement, made by defendant at the time of his arrest, which was not free and voluntary. R.S. 15:451, and La.C.Cr.P. art. 703(C) impose upon the state the heavy burden of showing affirmatively and beyond a reasonable doubt that a confession was made freely and voluntarily, not under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises, before it can be introduced into evidence. Defendant contends that the record supports his argument that the above statutory requirements were not met for three basic reasons.

In the first reason, defendant argues that the state failed to prove, with a signed form or by corroborating the testimony of the arresting officer, that the statement was preceded by the proper Miranda warnings. After the defendant was caught by the police dog he was handcuffed, put into the back of a police car, and read his Miranda rights by Officer Michael Humphrey. In response to this reading Officer Humphrey testified that the defendant said:

“... that he did the burglary. He knew he was guilty and he just wanted to go to the hospital and then bring him straight to Angola.”

Since the defendant was handcuffed and in the police car this statement was made while in custody, but not in response to interrogation. In regard to custodial statements this court stated in State v. Robinson, 384 So.2d 332 (La.1980):

“Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda, the United States Supreme Court observed: ‘By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been deprived of his freedom of action in any significant way.’ Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings even where a defendant is in custody. State v. George, 371 So.2d 762 (La.1979); State v. Thornton, 351 So.2d 480 (La.1977); State v. Sockweli, 337 So.2d 451 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972); State v. Hall, 257 La. 253, 242 So.2d 239 (1970).

Defendant’s statement herein was a spontaneous and voluntary statement given after Miranda warnings. The defendant himself testified that the officer read something to him from outside the car. This testimony corroborated the police evidence that the Miranda rights were, in fact, read to defendant. In State v. McPhate, 393 So.2d 718 (La.1981), this court said that spontaneous and voluntary statements not given as a result of a police interrogation or compelling influences are admissible in evidence without Miranda warnings even though defendant is in custody. State v. Robinson, supra. Defendant’s spontaneous, custodial statement is admissible under the standards set in Robinson and restated in McPhate whether or not the Miranda rights had been read. But, in the instant case, there is testimony of the rights having been read to defendant. This argument is without merit.

Defendant further claims his intoxication after fourteen hours of drinking was so severe as to render inadmissible any statement by him. Defendant argued intoxication at trial and objects here to the state’s failure to produce contradictory testimony or medical evidence challenging the truth or accuracy of defendant’s allegation of extreme intoxication.

This court discussed the standards for admitting statements made by persons who claim to be intoxicated in State v. Meredith, 400 So.2d 580 (La.1981):

“Where a free and voluntary nature of a confession is challenged on the ground that defendant was mentally incompetent due to intoxication at the time of the confession, such confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render her unconscious of the consequences of what she is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact and a trial judge’s conclusions on this issue will not be disturbed unless unsupported by the evidence. State v. Rankin, 357 So.2d 803 (La.1978).”

In the instant case, the record reveals that there are two versions regarding defendant’s presence in the residential back yard. Defendant claims that since his truck had overheated he was going to get water. Defendant alleges that he was walking to a friend’s house in the area when he heard the police yell. He was frightened and ran into a back yard where he passed out under a tree, only to be awakened by a dog biting on him. The trial judge heard this testimony, weighed it against the state’s version, which is found in the statement of facts, and decided that the defendant’s intoxication was not such as to vitiate the voluntar-iness of his inculpatory statement. Even from the defendant’s version of the events it is still reasonable to conclude that if defendant was lucid enough to care for his car then he was lucid enough to know what he was saying. In addition, there is ample testimony from the police officers to support the contention that defendant was coherent and capable of understanding questions. Thus, the trial judge’s ruling on this issue will not be overturned.

Defendant’s third reason in support of this argument is that the voluntariness of his statement is vitiated by the severe pain and loss of blood from his wounds inflicted by the dog.

Although defendant had several wounds on his hands, shoulder and upper arms which were severe enough to require treatment at a hospital, there is no medical evidence presented that the nature of the injuries was of such severity as to exclude the statement as voluntary. Two police officers testified that the defendant was bleeding but not excessively. For the lack of positive evidence in favor of the defendant, his reasons here are without factual basis and, therefore, without merit.

The fourth reason that defendant argues to suppress his inculpatory statement is the cumulative effect of all the previous factors in addition to:

(3) Threat of further injury, due to the continued presence of the dog;
(4) Absence of counsel;
(6) Absence of impartial witnesses;
(7) The hour and isolated location of custodial interrogation;
(4) The number (six) of armed policemen conducting the interrogation.

The record reflects that the dog was put back in his own car after the defendant was handcuffed. It also reflects that defendant was placed alone in the back seat of the police vehicle. Three officers stood outside of the opened back car door as one read the Miranda rights. There was no policeman in the patrol car with defendant nor was there any testimony that anyone threatened or coerced the defendant into making a statement. Since the statement was spontaneous there was no opportunity for counsel to be present. The admissibility of a custodial and spontaneous confession has already been discussed. The cumulative effect of these factors is not so great as to vitiate the voluntariness of the statement under a totality of circumstances test. What this court said in Robinson, supra, can be repeated here:

“... Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influences, are admissible in evidence without Miranda warnings even where a defendant is in custody. State v. George, 371 So.2d 762 (La.1979); State v. Thornton, 351 So.2d 480 (La.1977); State v. Sockwell, 337 So.2d 451 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972); State v. Hail, 257 La. 253, 242 So.2d 239 (1970).”

Consequently, this fourth reason lacks merit for suppressing the inculpatory statement. Since none of the previous three reasons merits consideration, the whole argument is groundless.

This argument lacks merit.

In Assignment of Error No. 3, defendant objects to the trial court’s reading of a special charge on flight to the jury. The charge was as follows:

“If you find that the defendant fled immediately after a crime was committed or after he was accused of a crime, flight alone is not sufficient to prove that he is guilty. However, flight may be considered in light of all of the other evidence. You must decide whether such flight was due to consciousness of guilt, or to other reasons unrelated to guilt.”

This court allowed a charge on flight in State v. Burge, 359 So.2d 616 (La.1978), even though in that case there was a negligible degree of relevance. In Burge, supra, the flight occurred from other than the scene of the crime and some twelve days after the crime, when he was confronted by an arresting officer. In the instant case, defendant fled from near the crime scene within minutes of the burglary alert. The flight goes to the weight and credibility of the evidence and would be a proper jury charge within the scope of La.C.Cr.P. art. 802(3).

This argument lacks merit.

In regard to Assignments of Error Nos. 4 and 5, defendant claims the trial court erred in failing to sentence defendant in accordance with the guidelines of La.C. Cr.P. art 894.1 and also by imposing an excessive sentence inappropriate to the seriousness of the crime.

Defendant argues that the judge did not reiterate the factual basis for his conclusions, but that he merely repeated the language of the statute, that defendant would be an undue risk to society if given probation; that he is likely to commit another crime; that a lesser sentence would deprecate the seriousness of the crime; and that, although there are no previous felonies, defendant’s misdemeanors show he has a propensity for crime. Defendant complains that the judge failed to articulate the basis for these conclusions.

Before reviewing the guidelines established in art. 894.1, it should be noted this court has held that the imposition of a sentence, even though within the statutory limits, may violate a defendant’s right under the Louisiana Constitution against excessive punishment. Thus, it has been determined that excessiveness of sentence poses a question of law reviewable under the appellate jurisdiction of the Supreme Court. State v. Sepulvado, 367 So.2d 762 (La.1979). Sepulvado further states that the trial court must articulate specific reasons for an apparently severe sentence in relation to the particular offender and the actual offense. While the trial court need not articulate every aggravating and mitigating circumstance presented in 894.1, the record must reflect that it adequately considered these guidelines in particularizing the sentence to the defendant. State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979). Thus, while the defendant’s sentence here does not exceed the maximum allowed for attempted simple burglary, six years, the sentence may nonetheless be reviewed to determine if the trial court complied with art. 894.1 and if it exceeded its discretion in sentencing. As a general rule, a sentence is excessive, “if it is grossly out of proportion to the severity of the crime, or it is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Bonanno, 384 So.2d 355, 357 (La.1980).

In the instant case, the judge gave meager factual reasons for the imposition of imprisonment by La.C.Cr.P. art. 894.-1(A) . The only facts that the judge mentioned were general statements referring to the defendant’s criminal history:

“You have not had a previous felony conviction, but you have had several misdemeanors and some near misses. You certainly show a criminal record and repetition.”

But the judge failed to mention any specific misdemeanors or their frequency. The imposition of sentence seems to be based on the judge’s opinion that defendant lied on the stand and on the fact that he had refused a plea bargain:

“You’re very fortunate that the State cannot double bill you at this time because I [you] personally got on the witness stand and lied and perjured yourself, and when somebody does that and doesn’t take the plea to begin with that is offered, and I’m convinced later that they have not told the truth to try to get out of it, I am usually ready to throw a good sized book at them. That is partially true in your case, partially not.”

The fact that defendant did not accept a plea bargain is not a factor listed in La.C. Cr.P. art. 894.1 nor is the judge’s opinion of the witness’ credibility. These are not facts that can form the basis for a sentence under the statute.

The United States Supreme Court stated that a defendant’s truthfulness while testifying in his own behalf, almost without exception, has been deemed probative of his attitudes toward society and prospects for rehabilitation and hence relative in sentencing. United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). The court further stated that a judge is not required to enhance a sentence of a defendant whose testimony he deems false but the court emphasized that the truthfulness of the defendant must be assessed “in light of all the other knowledge gained about the defendant, the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful society.” Grayson, supra, 98 S.Ct. at 2618. Thus, the U.S. Supreme Court requires “other knowledge” about the defendant in addition to his truthfulness, or lack thereof, to form a basis for the sentencing.

This court frowned upon use of a defendant’s perjury as justification for a sentence in State v. LaFleur, 391 So.2d 445 (La.1980). Defendant was convicted of perjury and when sentenced the trial judge made no reference to statutory factors nor was there any indication that he took them into consideration since the judge said only that he hoped the relatively harsh penalty imposed would teach the community to speak the truth. This reasoning was considered so “inadequate as to render unfeasible an evaluation of the appropriateness of a sentence, remanded for resentencing.” LaFleur, supra, at 447. Although, in the case at bar, the judge did refer to art. 894.1, he failed to mention “other knowledge about the defendant.” He merely repeated the language of the statute:

“Sentence for incarceration, reasons under Article 894.1, the Defendant is in need of correctional treatment of a custodial environment and a lesser sentence will deprecate the seriousness of the Defendant’s crime. Also, there’s an undue risk that during the period of suspended sentence of probation the Defendant will commit another crime, because he does show a criminal history. Good luck to you, Mr. Smith. I mean that. I hope all of you, I will not see you back here. Somehow, some way, you might get out and not repeat what has gone before again.
“(End of Proceedings)”

This court in State v. Fields, 394 So.2d 597, 600 (La.1981), restated that:

“... [t]o merely recite factors set forth in the sentencing statute which support imprisonment, but not to state considerations taken into account or the factual basis therefor in imposing sentence, does not satisfy Article 894.1. State v. Little, 377 So.2d 332 (La.1979); State v. Watson, 372 So.2d 1205 (La.1979).

Since the only basis for sentencing that the trial judge mentioned were the truthfulness of the defendant, his refusal of a plea bargain and his prior record (with no specificity), this case must be remanded for resentencing under the guidelines of La.C. Cr.P. art. 894.1 which demands that the court particularize the sentence to the defendant and the offense.

The defendant also contends that the four years at hard labor is an excessive sentence although within the statutory limits for attempted burglary. The judge never addressed the aggravating or mitigating circumstances that influenced his decision on the length of the sentence. He merely stated that the defendant was sentenced to hard labor since parish prison was overcrowded.

This court in State v. Fields, supra, at 600, restated the standard for measuring excessive sentencing.

“In State v. Sepulvado, 367 So.2d 762 (La.1979), we stated that the statutory criteria provided by LSA-C.Cr.P. Article 894.1 are appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous alternatives. We further noted that the trial judge’s reasons in imposing sentence, as required by this statute, are an important aid to this Court when called upon to exercise its constitutional function to review a sentence complained of as excessive. Absent compliance with LSA-C.Cr.P. Article 894.1 as in the instant case, we lack the necessary information by which to measure whether the sentence imposed is excessive. See also State v. Bourgeois, 388 So.2d 359 (La.1980); State v. Daranda, 388 So.2d 759 (La.1980).”

Since in this case, the judge gave only nominal recognition to the statutory requirements of art. 894.1, there is little to review for excessive sentencing. The record reflects mitigating circumstances, which the judge never mentioned, some of which are: Attempted burglary of less than twenty dollars worth of foodstuff, burglary of an unoccupied building, and no use of a weapon. Since there are no facts to review for excessive sentencing, this case should be remanded so that mitigating and aggravating circumstances are made part of the record to support the length of time imposed by the trial judge.

In Assignment of Error No. 6, defendant contends that the trial court committed reversible error in upholding the verdict of the jury when there was insufficient evidence upon which a verdict of guilty could be found.

La.Const. 1974, Article V, § 5, limits review of this court in criminal cases to questions of law only. In the past, this court has refused to review sufficiency of evidence in criminal cases except where there was a total lack of evidence. But the Supreme Court has established a change for review standards in State v. Landry, 381 So.2d 462, 466 (La.1980):

“Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) appears to dictate a change in our former jurisprudence concerning the scope of review in a criminal matter. Jackson, supra, held that the due process clause of the United States Constitution prohibits conviction of crime except on proof sufficient to convince the trier of fact of the existence of every essential element of the offense beyond a reasonable doubt. Under Jackson, supra, it seems the test may no longer be whether there is some evidence of guilt. Reversal of a conviction is mandated where the proof of guilt is such that no rational trier of fact could find guilt beyond a reasonable doubt.”

Applying Jackson, supra, herein, the defendant’s inculpatory statements are in themselves sufficient evidence to support a rational trier of fact’s returning a verdict of guilty beyond a reasonable doubt.

Accordingly, this assignment lacks merit.

For the above reasons, this case is remanded to the trial court for re-sentencing in compliance with the opinion expressed herein.

In all other respects, the conviction is affirmed.

REMANDED FOR RE-SENTENCE.

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

      . Art. 894.1. Sentence guidelines; generally
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.


author: GULOTTA, Justice ad hoc.

text:
    STATE of Louisiana v. Stephen ELLIOT.
    No. 80-KA-2185.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Tyson and Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
    Norman Ershler, Alton T. Moran and M. Michele Fournet of Indigent Defender Program, Baton Rouge, for defendant-appellant.
   GULOTTA, Justice ad hoc.

Defendant, convicted of possession of methamphetamine in violation of LSA-R.S. 40:967, urges on appeal that the trial court erred in denying his motion to suppress evidence leading to his conviction. We affirm.

On January 28, 1979, Corporal Kermit Smith of the East Baton Rouge Parish Sheriffs Office received a telephone call at his residence from a confidential informant who told him that he had received information from another source that a man in possession of methamphetamine would be driving a white Toyota in a short period of time in the area of Greenwell Springs and Jorr Roads. Smith told the informant to contact him on his radio beeper when he had actually seen the methamphetamine.

Smith radioed a request for back-up assistance from two other officers and immediately proceeded to the aforementioned area. En route, he was contacted on his beeper by the informant who, according to Smith, told him “that a white male known as Steve had the ‘crystal meth’ [methamphetamine] in the white Toyota, and they were fixing to leave a service station at Greenwell Springs Road and Jorr Road.”

When Smith arrived at the scene, he observed the vehicle, occupied by three men, approach the service station. The driver went inside the service station and returned to the car a few minutes later and then proceeded in an easterly direction on Green-well Springs Road. Smith radioed a license check on the vehicle and found that it was registered to Stephen Elliot.

After following the vehicle for a short distance, Smith and the other officers pulled it over. Smith and a fellow officer approached the vehicle with their guns drawn and asked the passengers to get out of the car. The passengers were searched and a hypodermic syringe was found in defendant’s sock. He was then arrested and transported to the courthouse. After arriving there, defendant was asked to remove his pants because an officer had observed him “fooling around with the front of his blue jeans” during the initial stop. When defendant complied, a plastic bag containing fifteen individually wrapped cellophane packs of methamphetamine fell to the floor.

Defendant filed a motion to suppress on the ground that the inculpatory evidence was obtained in violation of his rights under U.S.Const. — 4th Amendment, and LSA-Const. Art. I, § 5 because the arresting officers had no reasonable suspicion of criminal activity by the defendant to justify an investigatory stop and no reasonable suspicion that they were in danger of life or limb to justify frisking the defendant as provided in LSA-C.Cr.P. Art. 215.1. Because we conclude that defendant’s war-rantless arrest was based on probable cause, we hold that the search was incident to a lawful arrest. Accordingly, we affirm.

A warrantless arrest must be based on probable cause. State v. Morvant, 384 So.2d 765 (La.1980); State v. Simms, 381 So.2d 472 (La.1980). Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Morvant, supra; State v. Simms, supra, State v. Tomasetti, 381 So.2d 420 (La.1980). Furthermore, probable cause need not. be based on an officer’s personal knowledge, but on knowledge supplied by a person, even if the identity of the informant is kept confidential. State v. Morvant, supra; State v. Rudolph, 369 So.2d 1320 (La.1979).

Where the hearsay statements of a confidential informant form the basis for probable cause to arrest, there must be some underlying circumstances and details sufficient to show that the confidential informant was credible and the information given was reliable. State v. Rudolph, supra; State v. Gipson, 359 So.2d 87 (La.1978). Factors supporting the credibility of an informant include prior accurate reports or any specific independent corroboration of the accuracy of his instant report. One factor that supports the credibility of the information reported is direct personal observation by the informant. State v. Rudolph, supra; State v. Paciera, 290 So.2d 681 (La.1974).

In the instant case, Corporal Smith testified that the informant had given credible and reliable information in the past that had led to at least five arrests and had provided a basis for obtaining search warrants. Although the informant initially told Smith that he had knowledge that someone in the area had a small quantity of methamphetamine, the initial telephone conversation ended with the understanding that the informer would contact Smith on his “beeper” when he had actually seen the drug. As Smith and his fellow officers proceeded to the area, Smith received a call on his beeper from the informant who told him that a white male named Steve had the drug in a white Toyota which was about to leave the service station at Greenwell Springs Road and Jorr Road. When the officers arrived at the scene, they observed the vehicle as indicated by the informant and a license check revealed that it was registered to Stephen Elliot. The officer’s observations and investigation therefore corroborated the informant’s statements. Moreover, Smith, having been contacted on his radio beeper by the informant as agreed, could reasonably interpret the informant’s statements to mean that the informant had observed the defendant with the drug. Under these circumstances, the officers had a probable cause to arrest the defendant.

Police may conduct a warrantless search of a person legally arrested so as to discover and seize evidence of the crime. State v. Fauria, 393 So.2d 688 (La.1981); State v. Nickels, 347 So.2d 1151 (La.1977); State v. Clift, 339 So.2d 755 (La.1976). Having arrested defendant on probable cause that he had possession of an illegal drug, the officers were therefore justified in conducting a pat-down search at the scene of the crime and further search of his person at the courthouse immediately after his arrest to secure evidence of the crime. Accordingly, evidence of the drug was admissible at trial and we therefore find no error in the trial judge’s denial of defendant’s motion to suppress.

Defendant’s conviction is affirmed.

AFFIRMED.

       Judges James C. Gulotta and Jim Garrison of the Fourth Circuit Court of Appeal, and Judge Bernard J. Bagert of the Criminal District Court for the Parish of Orleans, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., and Fred A. Blanche.

      . On cross-examination at the suppression hearing, Smith stated that he had received a beeper message after the white Toyota had left the service station. He further testified that it was not until after the defendant was placed under arrest and searched at the courthouse that the informant stated that he had actually seen the methamphetamine.


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

text:
    STATE of Louisiana v. Hattie Belle McKEEVER.
    No. 81-KA-0398.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Lavalle Salomon, Sam Smith, Asst. Dist. Attys., for plaintiff-appellee.
    Percy A. Ford, of Ford & Avants, West Monroe, for defendant-appellant.
   KLIEBERT, Justice Ad Hoc.

The defendant, Hattie Bell McKeever, was tried and convicted of second degree murder for fatally shooting her “common-law” husband, Rodney James Minnified, with a .12 gauge shotgun. She was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. It is from this conviction and sentence that the defendant prosecutes this appeal relying on four assignments of error.

While under cross-examination, the state sought to adduce testimony from the defendant relative to the prior conviction of the crime of negligent homicide of one Ernest Norwood in 1974. When the state asked the question “Didn’t you kill him in much the same manner and over the same sort of disturbance as you did R. J.? ” the defendant’s counsel objected and the trial judge ordered a removal of the jury. Out of the presence of the jury the prosecutor indicated that he intended to show that the defendant had actually been indicted for manslaughter but had plea bargained and plead guilty to negligent homicide. The trial judge instructed the prosecutor to exclude questions concerning the plea bargaining but allowed him to proceed with his efforts to show the nature of the offense of which defendant had been convicted. On return of the jury the case continued with the prosecutor asking and receiving answers from Mrs. McKeever showing that she had shot Ernest Norwood, her “common-law” husband while intoxicated. Additionally, in the Norwood trial, she had contended as she does here, that she did not intend to shoot and kill Ernest Norwood. She claimed the gun had gone off during a scuffle over it, even though the gun had actually been fired five times.

Defense counsel contends the inquiry had a high prejudicial effect on the jury because the evidence portrayed her as “a bad person” who killed another man under a similar set of circumstances. He argues that State v. Jackson, 307 So.2d 604 (La.1975) and its progeny should be overruled because it is in direct contravention of R.S. 15:495.

In State v. Jackson, supra, this court, while overruling prior jurisprudence to the contrary, held that in impeaching the credibility of a defense witness, the state may cross-examine the witness about the details of the prior convictions in order to show the true nature of the offense. In State v. Brown, 371 So.2d 746 (La.1979) this court, while recognizing the Jackson case, supra, has its limits, reaffirmed the principle of the Jackson case, supra, and at page 750 stated:

“[t]he trial judge has great discretion in determining the depth and length of the inquiry. This discretion will not be disturbed absent a showing of abuse.”

The nature and scope of the inquiry permitted by the trial court here was well within the limits of that set by Jackson and its progeny. The trial judge did not abuse his discretion; nor do we find anything in the provisions of R.S. 15:495 which requires a reversal of the Jackson case.

Counsel assumes in brief that apart from the decision in Jackson, supra, evidence relating to the death of the defendant’s first common-law husband would have been inadmissible. This assumption is unfounded. In entering her plea of not guilty and not guilty by reason of insanity and her claim of intoxication, the defendant placed at issue in the trial the question of her intent. R.S. 15:446 provides that “[w]hen knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conducts or declarations of the accused as tend to establish such knowledge or intent”. Evidence that on another occasion, under similar circumstances to those present here, Ms. McKeever had shot another of her common-law husbands was admissible and probative on the question of intent, for as may be noted from the defendant’s assignment of error No. 4, the defense is urging lack of intent on this appeal. See State v. Monroe, 364 So.2d 570 (La.1978).

During the state’s closing argument, the defendant filed a motion for mistrial grounded in the prosecutor’s remarks relative to Ms. McKeever’s prior conviction of negligent homicide. The trial judge’s refusal to grant the mistrial is the basis for the defendant’s second assignment of error here. In argument, he relies on Article 770 of the Code of Criminal Procedure which provides in pertinent part as follows:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official during the trial or in argument, refers directly or indirectly to:
(2) another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial...”

Since the evidence as to the prior conviction was admitted by the trial court and such admission was found to be proper here, the defendant’s second assignment of error falls with the failure of the first assignment of error. This result obtains, because under the above quoted article of the Code of Criminal Procedure, the comments on which the motion for mistrial were predicated are proper where the evidence commented upon was properly admissible. State v. Johnson, 333 So.2d 223 (La.1976).

The defendant’s third assignment of error is also grounded in a motion for a mistrial filed during the state’s rebuttal following the defendant’s closing argument. The motion for a mistrial was based on the following comment of the prosecutor:

“. .. Defense counsel said, well Hattie McKeever’s going to have to live with your decision, well certainly R. J. Minnie-field was killed back in June, June the 29th, he can’t live with your decision. He was killed by this person, Hattie McKeever, when she intended to do that. She’s guilty of second degree murder.”

Counsel for the defendant contends the comment violates the provisions of Article 774 of the Code of Criminal Procedure because it is prejudicial. The death of the victim, R. J. Minniefield and the state’s contention that the defendant, Hattie Belle McKeever as the one who killed him were facts which had already been admitted in evidence. The state and the defense are entitled to make their own deductions of what evidence establishes. State v. Preece, 270 So.2d 850 (La.1972). State v. Daniels, 262 La. 475, 263 So.2d 859 (1972). In support of his argument, defense counsel cites only a portion of Article 774 of the Code of Criminal Procedure. When the entirety of the article is considered in the light of this jurisprudence, the remarks are merely facts and contentions which were properly stated rather than prejudicial arguments.

The fourth assignment of error arises from the defendant’s intoxication at the time of the commission of the offense. Mrs. Linda Armstrong, a witness called by the state testified that blood taken from the defendant was tested and determined to contain 0.22 per cent alcohol. On re-cross by defense counsel, Mrs. Armstrong testified that she had seen blood alcohol contents at considerably higher levels than 0.22 per cent. She also stated that from her experience in testifying in connection with cases involving blood alcohol content, she believed that 0.22 per cent alcohol content would be sufficient for purposes of a DWI conviction. Additionally, Dr. Grodman testified that he noted a blood alcohol content of .153 and stated that intoxication is a hard thing to judge unless you know the tolerance which a particular individual has to it.

Commander Alfred Calhoun, the chief investigating officer, testified that Ms. McKeever appeared to be intoxicated when he observed her at the scene of the crime. He stated that “[s]he was unsteady on her feet, her speech was slurred, and she emitted the ... what I believed to be the odor of alcoholic beverages.”

The defendant contends her conviction of second degree murder was contrary to the law and the evidence because her level of intoxication was so high as to preclude the formation of specific intent, a necessary element to the crime of second degree murder. In brief, counsel poses the question as follows:

“The legal question is succintly posed as to how can a person be legislatively presumed to be so intoxicated as to be unable to safely operate a motor vehicle and conduct his driving affairs with a blood alcohol content in excess of 0.10 blood alcohol content under La.R.S. 32:662, but yet be found by the jury to be competent and able to form specific criminal intent to commit second degree murder of another human being? Such a result is entirely inconsistent to the application of common sense and reason and, accordingly, contrary to the law and the evidence adduced in this case.”

The issue of intoxication was made the primary defense. Counsel for defendant sought and obtained special charges to the jury on the issue of intention and the law concerning intoxication. The jury heard the defendant testify as to her condition as well as that of the other witnesses. Despite the defense and efforts of defense counsel, the jury unanimously found the defendant guilty of the crime of second degree murder.

There was ample evidence for the jury to conclude defendant’s actions were conscious and intentional acts. In addition to the evidence as to intoxication there were two eyewitnesses to the shooting who testified at the trial as to how the shooting took place. An expert witness testified that the shotgun was fired at a distance of approximately fifteen (15') feet from the victim.

The jury is the ultimate trier of the facts. The jury’s discretion should only be impinged upon to the extent necessary to guarantee the fundamental protection of due process of law. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We find no basis to impinge upon the jury’s discretion in this case.

For the reasons stated the defendant’s conviction and sentencing are affirmed.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I concur in affirming defendant’s conviction and sentence because the majority of this Court over the dissent of three justices including myself, has resolved favorable to the prosecution the issue of whether the state may cross-examine a witness about the details of prior convictions. State v. Jackson, 307 So.2d 604 at 610 (La.1975).

       Judges Thomas J. Kliebert and Robert J. Klees of the Court of Appeal, Fourth Circuit, and Judge Ned E. Doucet, Jr., Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc joined by Chief Justice John A. Dixon and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack C. Watson.

      . Argument on assignment of error No. 5 is not briefed and is considered as abandoned. State v. Richmond, 284 So.2d 317 (La.1973).