text:
    CITRUS MEMORIAL HOSPITAL and Aetna Casualty & Surety Company, Appellants, v. Violette Denise CABRERA, Appellee.
    No. RR-136.
    District Court of Appeal of Florida, First District.
    Sept. 30, 1980.
    James F. Pingel, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellants.
    Frank C. Amatea, Ocala, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from a workers’ compensation order which found that appellee suffered a compensable accident. We affirm.

Appellee, a registered nurse, fractured her right wrist while using the restroom facilities at work when her right foot slipped and she fell on the commode, breaking her fall with her right hand. Appellants contested her claim for compensation, asserting that her injury did not arise out of and in the course of her employment. They rely on Southern Bell Telephone & Telegraph Company v. McCook, 355 So.2d 1166 (Fla.1977), to support their contention. In McCook, the claimant aggravated a preexisting back condition while using a restroom at work when she reached over to pick up a roll of tissue paper and suddenly experienced a sharp pain in her back. The court in that case stated:

. . . where an employee collapses solely due to an internal physical malfunction, the resulting physical damage does not arise out of the employment. [Federal Elec. Corporation v. Best, 274 So.2d 886 (Fla.1973).]

The court thereupon found that although McCook suffered an “accident” which occurred “in the course of employment,” the accident she suffered was not one “arising out of . . . employment.” The court followed the “universal principle of workmen’s compensation law that an idiopathic condition which results in injury to the worker does not ‘arise out of’ employment unless the employment in some way contributes to the risk or aggravates the injury.” The court noted the distinction “between physical damage suffered solely as a result of an idiopathic condition, and that suffered because of the combination of an idiopathic condition and the work place.”

The McCook case is distinguishable from the case at bar. Here, there is no evidence that appellee’s accident was caused by an idiopathic condition which manifested itself while appellee was on the job. To the contrary, appellee slipped and fell on her right wrist with such force as to cause a fracture. The fact that appellee was tending to a personal need when her accident occurred does not render her injury noncompensable. The Supreme Court, in denying compensability in McCook on the particular factual basis presented there, recognized the validity of the following principle:

2. The fact that McCook was attending to a personal matter at the time of the accident is irrelevant, since it was incidental to employment and therefore a matter within the “personal comfort doctrine”. See 1 A. Larson, The Law of Workmen’s Compensation §§ 21.00, and 21.53 (1972).

AFFIRMED.

MILLS, C. J., and THOMPSON, J., concur.


source: Caselaw Access Project

author: McCORD, Judge.

license: Public Domain

text:
    David Joseph LEE, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    No. TT-94.
    District Court of Appeal of Florida, First District.
    Sept. 30, 1980.

      Ferrin C. Campbell, Sr., Crestview, for appellant.
    Dawn E. Welch of Beggs & Lane, Pensacola, for appellee.
   McCORD, Judge.

Appellant appeals from the trial court’s order denying appellant attorney’s fees and costs incurred when appellant had to resort to the procedures set forth in § 627.427(2), Florida Statutes, to collect a judgment against appellee, Government Employees Insurance Company (GEICO). We agree with the trial court which held:

F.S. 627.427(2) does not specifically authorize the assessment of attorney’s fees and costs against an insurance carrier for services rendered by the plaintiff’s attorney in implementing the procedure set forth in § 627.427, F.S. where the insurance carrier fails to pay the judgment within sixty (60) days after the entry thereof.

Appellant relies on the last sentence of § 627.427(2) which provides that, after an insurer’s certificate of authority has been revoked for failure to satisfy a judgment or decree, the insurer will not be issued a new certificate of authority until the judgment is satisfied and “until the expenses and fees incurred in the case are also paid by the insurer.” The above-quoted wording does not authorize the award of attorney’s fees and costs incurred subsequent to the conclusion of a case in which a judgment has been rendered. Therefore, we affirm the trial court.

Although we have concluded that § 627.-427(2) does not authorize the award of attorney’s fees and costs incurred subsequent to the rendition of a judgment, this case illustrates the need for such statutory authorization. We, therefore, recommend its consideration by the Legislature,

AFFIRMED,

MILLS, C. J:, and. THOMPSON, J., concur


author: PER CURIAM.

text:
    Joseph M. BERTONE, Appellant, v. STATE of Florida, Appellee.
    No. VV-457.
    District Court of Appeal of Florida, First District.
    Sept. 30, 1980.
    Joseph M. Bertone, in pro. per.

      No appearance for appellee.
   PER CURIAM.

Bertone appeals the denial of his motion for rehearing for mitigation of sentence pursuant to Rule 3.800 Fla.R.Crim.P. We note that no appeal lies from the denial of a motion for reduction of a legal sentence filed pursuant to Fla.R.Crim.P. 3.800. Hallman v. State, 371 So.2d 482 (Fla.1979), affirming 343 So.2d 912 (Fla.2d DCA 1977); Suggs v. State, 358 So.2d 897 (Fla.2d DCA 1978).

Although his appeal is filed pursuant to Rule 3.800 Fla.R.Crim.P., Bertone’s argument is more closely akin to an appeal of a denial of a motion for post conviction relief pursuant to Rule 3.850 Fla.R.Crim.P. Even if he had used this means of appeal, we would affirm the denial of his Rule 3.850 Motion for Post Conviction Relief.

He argues that since he was on parole for a prior rape conviction, his subsequent sentence for attempted second degree murder could not be made to run consecutively to the sentence for rape. He cites Distillator v. Civiletti, 612 F.2d 194 (5th Cir. 1980) for the proposition that a sentence cannot be stacked to a parole that has not been executed or violated. We note that Distillator construed a federal law pertaining to the execution of parole violation warrants and is inapplicable to the instant proceedings under Florida law.

Tereul v. Wainwright, 328 So.2d 199 (Fla. 1976) and Holley v. Wainwright, 326 So.2d 411 (Fla.1976) have construed Florida Statutes to mandate that a second sentence, entered in regard to a different information or indictment; shall run consecutively to a prior sentence unless the trial judge specifically orders the sentence to run concurrently. In this case, the trial judge specifically ordered the sentences to run consecutively. We find no error. Therefore, the appeal is dismissed.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    Steven Henry ROBERTS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1732.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.
    Steven Henry Roberts, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

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

Affirmed.


text:
    Robert Joseph BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1761.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.

      Robert Joseph Butler, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

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


author: COBB, Judge.

text:
    Kerry BARLOW, Appellant, v. STATE of Florida, Appellee.
    No. 00-239/T1-116.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The defendant, Kerry Barlow, was convicted after jury trial of two counts of battery. He was placed on two years probation. On appeal he challenges the sufficiency of the evidence to support the convictions, as well as a condition of probation requiring restitution as directed by the probation officer. The written order of probation was in error, as conceded by the state, in imposing a single two-year probationary period on appellant for the two separate counts of battery (two victims having been involved in the physical altercation), rather than imposing two consecutive one-year probationary periods in conformity with the oral announcement of the trial court at the time of sentencing.

The evidence at trial indicated that Barlow, who was eighteen, became involved in a fracas with two older men, aged seventy-three and sixty-two respectively, in a park in Ocala. Barlow’s father, William Barlow, wielding a “pipe-like instrument,” interceded to help him. The victims suffered a broken nose and fractured dentures.

There was evidence which, if believed by the jury, indicated that Kerry Barlow kicked and struck the victims and that he instigated the incident. Although there was contrary evidence submitted by the defendant’s own testimony, there was sufficient evidence to sustain the convictions. Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975), cert. denied, 429 U.S. 998, 97 S.Ct. 524, 50 L.Ed.2d 608 (1976).

The appellant challenges condition No. 9 of the probation order which provides:

You will pay lh of the total restitution to the victims as directed by your Probation Officer.

There was a corresponding requirement in the probation order concerning the co-defendant, appellant’s father.

The appellant contends that the trial court must give notice of the proposed restitution and afford an opportunity to a defendant to be heard as to the amount, and that the court cannot delegate its responsibility for determining the amount and schedule of restitution to the probation officer. The state, although conceding that extant authority in Florida supports appellant’s substantive contention in regard to notice and delegation of authority, notes that these objections have never been presented to the trial court.

In Fresneda v. State, 347 So.2d 1021 (Fla. 1977), the Florida Supreme Court held that a condition of probation requiring a probationer to pay money to, and for the benefit of, the victim of his crime must be predicated by notice to, and the opportunity to be heard by, the defendant so that he may challenge the amount, presumably in regard to reasonableness as well as causal relationship to his offense. The court also noted that section 948.03(l)(g), Florida Statutes, requires the “amount to be determined by the court.”

In Fresneda, however, there was a motion directed to the trial court to correct an illegal sentence. That was not done in the instant case. See Pope v. State, 368 So.2d 676 (Fla. 1st DCA 1979). We believe that objections to trial court sentences, such as appellant raises here, first should be raised before the trial court. See Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980) and Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980).

The state concedes that the order of probation should be modified to conform to the oral ruling of the trial court at sentencing which placed appellant on two consecutive one-year probationary periods. See McClure v. State, 371 So.2d 196 (Fla. 2d DCA 1979).

Accordingly, the judgment and sentence of the trial court are affirmed, with the exception that the incorrect single two-year probationary sentence is amended to the appropriate two one-year sentences. This action is without prejudice to appropriate post-conviction relief which may be sought by appellant in the trial court in regard to the issue of restitution.

AFFIRMED as modified.

DAUKSCH, C. J., and SHARP, J., concur.


author: PER CURIAM. DAUKSCH, Chief Judge,

text:
    Ben Holland GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1779/T4-183.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.

      Richard S. Rhodes, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. In my opinion the search warrant was defective in two ways. First, the place to be searched was not sufficiently described to lead the executioner of the warrant to the house. Just because the affiant was the one who served the warrant and knew where the place was located does not cure the defective description.

Second, although the police officer whose affidavit supplied the basis for the issuance of the warrant said he relied upon a person who was a “confidential reliable informant”, it was later established the “informant” was not a previously relied upon source. That defect, coupled with the description inadequacy, leads me to say we should reverse the conviction.


text:
    Herman Harvey LAWS, Appellant, v. STATE of Florida, Appellee.
    No. 79-373.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, App. Div., Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a final order adjudicating defendant guilty entered by the Circuit Court of Volusia County, Florida. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On July 17, 1980, the Fifth District Court of Appeal gave the appellant thirty (30) days within which to file a brief on his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted, and the adjudication of guilty is hereby

AFFIRMED.

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: GREEN, OLIVER L., Associate Judge.

text:
    Michael DAY, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a Foreign Corporation, Appellee.
    No. 80-145.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.

      Michael Maher of Maher, Overchuck & Langa, Orlando, for appellant.
    Monroe E. McDonald of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for appellee.
   GREEN, OLIVER L., Associate Judge.

The Appellant, Michael Day, appeals from a final order granting appellee’s, United States Fidelity and Guaranty Company, motion for judgment on the pleadings. We reverse.

On June 30, 1978, the appellant, Michael Day, was operating an automobile owned by his brother, Charles Day, when he was injured in an automobile accident involving a negligent, uninsured motorist. Michael Day’s injuries were covered under three separate policies of insurance, issued to three different named insureds. Michael Day had a policy issued in his name, with the appellee, United States Fidelity and Guaranty Company, providing uninsured motorist coverage in the amount of $10,-000/$20,000. Additionally, Michael Day was covered under a policy issued to his brother, Charles Day, by Fidelity & Casualty Company of New York, providing uninsured motorist coverage in the amount of $10,000/$20,000. Michael Day was also covered under a third policy issued by the Insurance Company of North America, to his mother and step-father, with whom he resided at the time of the accident. A settlement in the amount of $35,000 was eventually reached regarding payment of uninsured motorist coverage under this last mentioned policy, issued to his mother and step-father.

These facts were admitted by the appel-lee, United States Fidelity and Guaranty Company, however, it was contended that no stacking was possible under the provisions of Section 627.4132, Florida Statutes (1977). The pivotal question in this appeal is whether the last sentence of Section 627.-4132 relieves the appellant, Michael Day, from the provision which forbids stacking under certain circumstances. Section 627.-4132, Florida Statutes provides:

627.4132 Stacking of coverages prohibited.-If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.

The Fourth District Court of Appeal held, in McLellan v. State Farm Mutual Automobile Insurance Company, 366 So.2d 811 (Fla. 4th DCA 1979), that Section 627.4132 prohibits stacking entirely, even in cases where the policies sought to be stacked are issued to different named insureds. The court reached this conclusion by what we believe to be a strained judicial interpretation of legislative intent.

The Third District Court of Appeal, in Kokay v. South Carolina Insurance Company, 380 So.2d 489 (Fla. 3d DCA 1980), reached an entirely different result, holding that the last sentence of Section 627.4132 simply means what it says and that is the prohibition against stacking does not apply to insurance policies insuring different named insureds. The court in Kokay went on to state:

We recognize that this conclusion is directly contrary to the holding in McLel-lan. We respectfully, but thoroughly, disagree with that decision. In our judgment, the conclusion reached in McLellan is inappropriately based upon the court’s interpretation of the supposed intent of the legislature in enacting s. 627.4132 to preclude stacking in every instance notwithstanding the language in the statute itself which is unequivocally to the contrary of the court’s view.

The decision in Kokay v. South Carolina Insurance has been followed in the cases of Burt v. State Farm Mutual Automobile Insurance Co., 383 So.2d 966 (Fla. 1st DCA 1980); Stephen v. U. S. Fidelity and Guaranty Co., 384 So.2d 691 (Fla. 2d DCA 1980), and Porter v. State Farm Mutual Automobile Insurance Co., 385 So.2d 1100 (Fla. 2d DCA 1980). We adopt the holding in Kokay v. South Carolina Insurance Company. We reject the holding in McLellan v. State Farm Mutual Automobile Insurance Company. We hold that under the facts of this case, the appellant, Michael Day, is entitled to stack coverage under the uninsured motorist provisions of the insurance policy issued to him by the appellee, United States Fidelity and Guaranty Company.

The order herein appealed is reversed and this cause remanded for further proceedings pursuant to this opinion.

REVERSED and REMANDED.

ORFINGER and COBB, JJ., concur.


author: LETTS, Chief Judge.

text:
    John S. POLING and Nancy Poling, Appellants, v. PETER R. RYLANCE, INC., Eggleston & Sons Plumbing, and William Keith Wheeler, Appellees.
    No. 79-1845.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 1980.

      Raymond G. Ingalsbe of Saylor, Ingalsbe & Cohen, North Palm Beach, for appellants.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellee, Eg-gleston & Sons Plumbing Co.
   LETTS, Chief Judge.

This cause is affirmed.

An employer is not liable for injury caused to a third party by his employee’s German Shepherd dog if the bringing of that dog to the worksite is not consented to or encouraged by the employer, of no benefit to the employer, not within the scope of the employee’s duties, and the employer has no knowledge of the vicious propensities of the animal. In such circumstances the employer breaches no duty to a third party who lives down the street from the worksite and is attacked. See Whetzel v. Metropolitan Life Insurance Co., 266 So.2d 89 (Fla.4th DCA 1972) and Dickinson v. Graham-Jones Paper Co., 84 So.2d 309 (Fla. 1955).

As to this latter cited case, which concerned a fighting cock, we quote the following language commencing on page 309 of this decision by our supreme court:

There is a wealth of authority on the question of keeping vicious dogs and other ferocious animals, the owner being held liable therefor, but a corporation is only responsible for the acts of its agents or employees while acting within the scope of their authority or while in the furtherance of its business. It is inconceivable to this Court how keeping a “fighting cock” is in the furtherance of the corporation business of a paper concern, nor is there any such allegation in the complaint. Certainly the corporation did not own the cock, nor was it engaged in such a business as promoting “fighting cocks”. Knowledge of such keeping AND knowledge of the viciousness of such animal are both necessary elements to be alleged in order to hold a corporation for the acts of its agents, servants, or employees.
******
Knowledge of the owner of the viciousness of an animal is not imputable to anyone else, especially his employer, unless the employer directed the employee to do the specific act of keeping the animal, or unless it was reasonably foreseeable as a result of his authority as the agent. To hold otherwise would be to make every corporation an insurer of the actions of its employees.

We .find no merit in the other point on appeal.

AFFIRMED.

BERANEK and HURLEY, JJ., concur.


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Patricia Zoe CAHILL, Appellee.
    Nos. 79-1629, 79-1652.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, Bar-tow, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for case no. 79-1652.
    Robert E. Jagger, Public Defender, Clear-water, and Lynn Tepper Sestak, Asst. Public Defender, New Port Richey, for case no. 79-1629.
   RYDER, Judge.

The State files consolidated appeals from two orders suppressing evidence of an admission and certain objects in separate criminal actions before Pinellas and Pasco Circuit Courts.

Clearwater police detectives traced a vehicle, whose driver allegedly sideswiped and twice shot at another motorist days earlier in Clearwater, to its owner the appellee’s mother. The testimony elicited during the suppression hearing revealed that the officers drove to the mother’s residence in Pas-co County. Mrs. Cahill informed the police that she thought appellee had the car at the time of the incident. She directed the Clearwater officers to another Pasco location to find appellee. While driving to the given location, the officers observed the suspect vehicle in motion and followed it to a shopping center parking lot.

Detective Butler testified that he and Officer McMannis, both in plain clothes, drove into the' parking lot and parked alongside appellee. McMannis identified himself to appellee after she exited from her car and said they wanted to talk to her. Butler testified that McMannis got out of the police vehicle first and at that point, appellee had her hands in her purse. McMannis took the purse away from her and Butler next saw it on the hood of the police car separated from appellee and out of her reach. Upon being subsequently told the subject of the investigation, appellee admitted that she shot at a car (although only once), and said on further questioning that the gun was in her purse. After searching the purse and finding a gun and bullets, the officers arrested appellee for. carrying a concealed firearm. The State later charged appellee with aggravated assault for the earlier Clearwater incident.

Officer McMannis’ testimony was substantially similar, except that he denied touching appellee’s purse until after her admission and said that she put the purse on the police car hood. No other testimony was presented.

On appellee’s motion to suppress the statement, gun and bullets in the carrying a concealed firearm prosecution, the trial judge found that the arrest was illegal because the police were out of the Clearwater jurisdiction. The court noted that since the officers identified themselves as police, all subsequent actions were taken under color of their office. Although reciting detailed facts, the court did not address the conflict between the testimony of the two officers, noting only that the purse was on the car. In a similar subsequent motion in the case involving the original aggravated assault charge, another trial judge granted suppression noting that he was bound by the suppression order entered in the carrying a concealed firearm case.

An admission or search occurring prior to arrest are unaffected by the questioned legality of the later arrest, since the search or the circumstances surrounding the admission must be improper at the time made to support suppression. See Moll v. United States, 413 F.2d 1233 (5th Cir. 1969); Wigfall v. State, 323 So.2d 587 (Fla.3d DCA 1975); State v. Jackson, 240 So.2d 88 (Fla.3d DCA 1970). We consider that issue no further. We note that police may legally carry investigation of a crime in their jurisdiction to other areas outside of their jurisdiction. State v. Williams, 366 So.2d 135 (Fla.2d DCA 1979); Parker v. State, 362 So.2d 1033 (Fla. 1st DCA 1978). Thus, the voluntary questioning of appellee was proper. There was no “stop” involved under the facts below, since the officers merely approached appellee and she voluntarily answered their questions. See United States v. Wylie, 186 U.S.App.D.C. 231, 569 F.2d 62 (1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978); State v. Frost, 374 So.2d 593 (Fla.3d DCA 1979).

The conflicting testimony of subsequent events provides two possible results. If the officer seized the purse immediately, that seizure would in effect be a restraint on liberty, since appellee would not leave without her purse. With no founded suspicion that appellee was engaged in criminal conduct, the restraint was improper and would taint the subsequent admission and evidence. See State v. Frost, supra. However, if Officer McMannis is believed, no improper police conduct occurred to taint the admissions and evidence, and they may be admitted.

If the trial court had made specific or implied factual findings on this issue, we would be bound to apply every inference to uphold its decision. State v. Nova, 361 So.2d 411 (Fla. 1978). No such findings appear. We therefore reverse the order granting suppression in Case No. 79-1629 and remand for reconsideration of the motion to suppress in light of the preceding opinion.

Regarding the subsequent suppression order in the aggravated assault charge, we note that, in some circumstances, the State may be collaterally estopped from reargu-ing ultimate facts because of the Fifth Amendment bar on double jeopardy. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Murphy v. State, 382 So.2d 1380 (Fla.2d DCA 1980). We need not reach the question of whether the action below requires application of collateral estoppel since the initial order no longer stands. The order entered in Case No. 79-1652 is reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED with instructions.

BOARDMAN, Acting C. J., and CAMPBELL, J., concur.


text:
    Kenneth E. DECOFF and Imelda Decoff, his wife, Appellants, v. TROPICANA PRODUCTS, INC., Appellee.
    No. 80-220.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1980.
    Michael J. Meksraitis of McQuillian & Meksraitis, Chartered, and Richard A. Bo-kor, for appellants.
    William E. Hennen and T. Gregory Sloth-er of Marlow, Shofi, Ortmayer, Smith, Con-nell & Valerius, Tampa, for appellee.
   PER CURIAM.

Affirmed. See Goldberg v. Context Industries, Inc., 362 So.2d 974 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 459 (Fla.1979).

HOBSON, Acting C. J., and RYDER and DANAHY, JJ., concur.


author: GRIMES, Judge.

text:
    Leonard F. HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 80-738.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1980.
    Jack 0. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

A jury found appellant guilty of aggravated battery and sexual battery with force not likely to cause physical injury. He was convicted primarily upon the testimony of the victim. Nevertheless, the court did not err in declining to charge the jury to treat the uncorroborated testimony of the victim with caution. Pendleton v. State, 348 So.2d 1206 (Fla. 4th DCA 1977); Williamson v. State, 338 So.2d 873 (Fla. 3d DCA 1976); § 794.022(1), Fla.Stat. (1979).

The court sentenced appellant to concurrent fifteen and five year terms of imprisonment, and the sentencing order stated that the “court maintains jurisdiction over defendant.” Section 947.16(3), Florida Statutes (1979), provides that where a defendant is convicted of certain enumerated offenses a trial judge may retain jurisdiction over the defendant for the first one-third of his sentence. However, subsection (a) of that section requires that where a judge chooses to do so he must state on the record his justification with “individual particularity.” While sexual battery and aggravated battery are both among the contemplated offenses, here the trial judge failed to note any justification for his retention of jurisdiction on the sentencing order. The transcript of the sentencing hearing is also silent in this regard.

Accordingly, we remand the case to the court with instructions either to relinquish jurisdiction over the appellant or to include in the record the justification for the retention of jurisdiction. Otherwise, we affirm the judgments and sentences.

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


author: MARCUS, Justice. DIXON, Chief Justice

text:
    STATE of Louisiana v. Roger S. BOURGEOIS.
    No. 66656.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, James Maxwell, Asst. Dist. Attys., for plaintiff-appellee.
    Michael S. Fawer, Matthew H. Green-baum, Jean Williams, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Roger S. Bourgeois was charged by bill of information with possession with intent to distribute cocaine in violation of La.R.S. 40:967. Defendant filed a motion to suppress the 44 grams of cocaine found during a search without a warrant of his suitcase at New Orleans International Airport. After a hearing, the trial judge denied the motion, finding that defendant had consented to the search. Defendant withdrew his former plea of not guilty and entered a plea of guilty as charged, reserving his right to appeal the ruling of the trial judge denying the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). After determining that the plea was made voluntarily and with understanding of the nature of the charge, the trial judge accepted the plea of guilty. A presentence investigation was ordered. Subsequently, defendant was sentenced to serve fifteen years at hard labor. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to suppress the 44 grams of cocaine found during a search without a warrant of his suitcase at New Orleans International Airport.

At the suppression hearing, Raymond Egan, special agent with the Drug Enforcement Administration in New Orleans, testified that he was informed by Officer Bill Johnson of the Dade County Sheriff’s Office in Miami, Florida, on February 1,1978, that Johnson had spoken to defendant at the Miami Airport and that defendant exhibited signs of nervousness and changed his story when questioned. Johnson told Egan that he observed defendant check his suitcase at the ticket counter and that it was thereafter placed on a plane bound for New Orleans. Johnson described the suitcase as a “dark bag with a red letter ‘N’ on it” and informed Egan of the claim check number of the bag. Due to heavy fog, planes were rerouted and people were transferred from one plane to another. Neither defendant nor his bag could be located that night.

The next morning, Egan received another call from Miami informing him that defendant would be arriving in New Orleans at 5:00 p. m. aboard a National Airlines flight. Defendant’s suitcase arrived in New Orleans about 2:00 p. m. that afternoon. A K-9 dog, trained in sniffing for narcotics, sig-nalled the presence of drugs in the bag. The bag was kept under surveillance. Defendant arrived at about 5:00 p. m. as expected. He proceeded to the baggage area where he remained standing near the exit door looking nervously in all directions. Despite the fact that his bag came around twice on the conveyor belt, he did not retrieve it. Defendant suddenly turned and “bolted” through the exit door. Egan pursued and stopped him in the parking lot. He identified himself as a federal agent and in response to defendant’s inquiry about the reason for the stop, Egan told him that he must have either left his bag behind or lost it on a flight. Defendant replied that he had no bag with him. Egan then asked defendant to accompany him to his office inside the terminal to determine if the bag referred to by Egan did in fact belong to defendant.

Egan and defendant returned to the terminal where they were met by another agent carrying the suitcase. Egan advised defendant of his Miranda rights upon entry into the building. The two agents accompanied defendant to the third floor office which was used jointly by DEA and the local sheriff’s office. Enroute to the office, defendant denied ownership of the bag. Once inside the office, Egan began preparing an application for a warrant to search defendant’s suitcase. As he was doing so, defendant continued to deny ownership of the bag and asked questions. Egan informed defendant that he was preparing an application for a search warrant. Egan testified that he prepared the warrant application because he did not expect defendant to consent to a search of the bag due to his repeated denials of ownership. Defendant asked to make a phone call to an attorney but Egan would not allow him to do so, advising defendant that he could make the call after the search.

In response to defendant’s repeated denials of ownership of the bag, Egan informed defendant that he did not have to say anything and that he (Egan) would rather that he did not. Egan then asked defendant if he wanted to cooperate with the authorities as they knew the bag belonged to him. Defendant inquired as to what such cooperation entailed. Egan replied that he would have to sign a consent to search form and give them information regarding the source of the drugs. Defendant then asked, “What good would it do me? What will you give me for it?” Egan replied, “I can’t give you anything. All I can tell you is that we work with the District Attorney and I will let the District Attorney know what you did. I will let the presiding judge know what you did.” Defendant then stated, “O.K. fine, I will cooperate with you. What form I have to sign?” At that point, defendant signed a consent to search form which was admitted in evidence at the suppression hearing. After defendant signed the form, the suitcase was opened. It contained 44 grams of cocaine, several other drugs and some clothing.

In response to defendant’s request to be released, Egan asked, “What kind of bond can you make?” Defendant replied by seeking release on a “P.R. bond.” Egan replied that he would have to make “some kind of bond.” Egan stated that defendant got “huffy and puffy, and he got mad and didn’t want to talk to us anymore.” Defendant then called his attorney. Egan stated that, after the suitcase was open, defendant no longer denied its ownership. Although defendant never affirmatively admitted ownership of the bag, he clearly acknowledged its ownership by agreeing to cooperate, signing the consent to search form, and informing the officer of the identity of a drug found in the bag.

Defendant’s testimony differed from that of Agent Egan in that he testified that an agent had already unzipped the bag and pulled out a pair of trousers at the time he signed the consent to search form and that he was not orally informed of his Miranda rights. Defendant admitted that he denied the bag belonged to him, that Egan informed him that he was going to procure a warrant to search the bag, and that the consent to search form was not produced until later when his cooperation was discussed.

Unreasonable searches and seizures are prohibited by the fourth amendment to the federal constitution and by section 5 of article 1 of our state constitution. It is well settled under the fourth and fourteenth amendments that a search conducted without a warrant issued upon probable cause is “per se unreasonable . subject only to a few specifically established and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Katz v. United States, 389 U.S. 347, 83 S.Ct. 507, 19 L.Ed.2d 576 (1967). It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, supra; State v. Johnson, 380 So.2d 32 (La.1980). Hence, a search conducted pursuant to a valid consent is constitutionally permissible. Moreover, when the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was, in fact, freely and voluntarily given. Schneckloth v. Bustamonte, supra; Bumper v. North Carolina, 391 U.S. 543 (1968); State v. Johnson, supra. It is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. Therefore, the validity of the consent is determined by the facts and circumstances of each case. Schneckloth v. Bustamonte, supra; State v. Johnson, supra. The question of consent is one of fact. State v. Dunbar, 356 So.2d 956 (La.1978); State v. Temple, 343 So.2d 1024 (La.1977). The determination of the trial judge, who has the opportunity to hear and observe the witnesses, is entitled to great weight on review. State v. Dunbar, supra; State v. Temple, supra. The fact that a person was not warned of his right to refuse to consent to the search is only one factor to be considered in determining the voluntary nature of the consent. Schneckloth v. Bustamonte, supra.

Whether defendant was under arrest at the time of the consent is a factor to be considered in determining whether defendant voluntarily consented to the search. State v. Johnson, supra. The fact of custody is to be considered in that determination but custody does not of itself render the consent involuntary. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). La.Code Crim.P. art. 201 defines “arrest” as follows:

Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.

The statutory definition of “arrest” is keyed to the concept of restraint. It is the circumstances indicating an intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer’s statement: “You are under arrest,” that are determinative of when an arrest is actually made. State v. Tomasetti, 381 So.2d 420 (La.1980); State v. Marks, 337 So.2d 1177 (La.1976); State v. Warren, 283 So.2d 740 (La.1973). In the instant case, we are convinced that defendant was arrested when he was stopped by Agent Egan as he attempted to leave the airport and was taken by Egan to his office for questioning. Defendant was unmistakably restrained; he was under arrest. The fact that defendant was not verbally advised that he was under arrest until after the suitcase was subsequently opened does not alter the fact of arrest.

A warrantless arrest, no less than an arrest pursuant to a validly-issued warrant, must be based on probable cause. State v. Thomas, 349 So.2d 270 (La. 1977). Probable cause exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Marks, supra. Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Tomasetti, supra; State v. Marks, supra.

In the instant case, Agent Egan had received information from Officer Johnson that defendant had acted suspiciously when questioned at the Miami Airport. Egan had also been given a description of defendant’s suitcase and its claim check number. Prior to defendant’s arrival in New Orleans, the presence of drugs had been signalled by a dog trained in their detection. Upon his arrival in New Orleans, defendant failed to claim the suitcase, although it was visible to him on the baggage conveyor belt, and he hurriedly attempted to leave the airport without claiming the bag. We conclude that ample probable cause existed prior to the arrest of defendant.

We also conclude as did the trial judge, after considering all the facts and circumstances, that defendant voluntarily consented to the search of his suitcase. Although defendant initially denied ownership of the suitcase, as Agent Egan was preparing the application for a search warrant, defendant agreed to cooperate with the authorities and specifically inquired as to what he could do. Consenting to the search and signing the consent to search form were responses to his inquiry. The authorities agreed to report his cooperation to the district attorney and the court. It is obvious that defendant knew that the authorities had knowledge that the suitcase belonged to him and contained drugs and that the discovery of the drugs would only be a matter of time until the search warrant would be obtained. Hence, it served his purpose to cooperate by consenting to the search. Admittedly, defendant’s request for an attorney was denied while Agent Egan was preparing the application for the search warrant. Defendant was advised that he could make the call after the search. A person’s sixth and fourteenth amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Clearly, defendant’s right to counsel had not attached at the time his request was made. Nor was defendant being interrogated thereby invoking his right to counsel upon request. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Hence, Agent Egan’s denial of his request was not improper. After the search took place, defendant did in fact call his attorney from the airport office.

In view of the foregoing, we are unable to say that the trial judge erred in denying defendant’s motion to suppress. Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in failing to comply with the sentencing guidelines set forth in La.Code Crim.P. art. 894.1. He further argues that the sentence imposed is excessive.

At the sentencing hearing, the trial judge sentenced defendant to serve fifteen years at hard labor. The trial judge gave no reasons for the imposition of that sentence, except that he noted that he had considered the information provided in the presentence investigation report. We conclude that the trial judge did not comply with La.Code Crim.P. art. 894.1(C), which requires that the trial judge state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

In State v. Sepulvado, 367 So.2d 762 (La. 1979), we stated that the statutory criteria legislatively provided by La.Code Crim.P. art. 894.1 provides 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 sentence 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 La.Code Crim.P. art. 894.1, as in the instant case, we lack appropriate criteria by which to measure whether the sentence imposed is excessive. Accordingly, we must vacate defendant’s sentence and remand the case to the trial court with instructions to properly consider the sentencing guidelines in the statute before imposing sentence.

DECREE

For the reasons assigned, defendant’s conviction is affirmed but the sentence imposed is vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence defendant in accordance with law.

DIXON, C. J., concurs with reasons.

DIXON, Chief Justice

(concurring).

I believe there was probable cause to arrest and the search (and seizure) of the suitcase was incidental to the lawful arrest.

LEMMON, Justice, concurring in denial of application for rehearing.

Defendant’s argument that refusal of counsel vitiated his consent to the search fails to distinguish between Fourth and Fifth Amendment rights.

In the determination of whether the consent to search was valid, the presence of counsel is only one factor to be considered. The denial of counsel does not automatically destroy the efficacy of otherwise valid consent.

      . The state has not argued that the search in the instant case was justified as one incident to a lawful arrest of defendant. It can well be argued in these circumstances that the search in the instant case was justified as one incident to a lawful arrest and that the suitcase was within defendant’s immediate control at the time of the search. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Tomasetti, 381 So.2d 420 (La. 1980). Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), relied upon by defendant, is distinguishable from the instant case in that the search there involved an automobile and that, at the time of the search, the luggage searched was not within the immediate control of the defendant.

      . Defendant did not object on this ground at the time of sentencing. However, we have held that, even without formal objection at the time of sentencing, where the trial judge imposes a sentence without adequate compliance with the mandatory requirements of La.Code Crim.P. art 894.1, this court may vacate a sentence and remand for resentencing when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Gist, 369 So.2d 1339 (La.1979); State v. Cox, 369 So.2d 118 (La.1979).
      La.Code Crim.P. art. 894.1 provides:
      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.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under stiong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal
      conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

      . Defendant did not object on the ground of excessiveness at the time of sentencing. However, we have held that no objection is required as to excessiveness at the time of sentencing to preserve the issue for appellate review when raised by assignment of error to this court. State v. Gist, 369 So.2d 1339 (La.1979); State v. Cox, 369 So.2d 118 (La.1979).


author: DENNIS, Justice.

text:
    CONSTRUCTION MATERIALS, INC. v. AMERICAN FIDELITY FIRE INSURANCE COMPANY.
    No. 67151.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.

      Andre C. Broussard, Hebert, Moss & Broussard, Baton Rouge, for plaintiff-applicant.
    Paul H. Spaht, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for defendants-respondents.
   DENNIS, Justice.

The issue in this case is whether the Public Works Act, La.R.S. 38:2241 et seq., prohibits a surety company from obligating itself on a contractor’s performance and payment bond to pay claims not covered under the act. The court of appeal reversed the trial court’s judgment for the plaintiff material and equipment supplier, Construction Materials, Inc., against the defendant contractor and its surety, holding that “a public works bond can be neither broader nor narrower than the law which provides for it.” 383 So.2d 1291, 1293-94 (La.App. 1st Cir. 1980). We reverse and reinstate the district court judgment. The Public Works Act does not prohibit a contractor’s surety from voluntarily contracting to pay claims to unpaid workmen or suppliers who are unprotected by the act; the act assures each person protected by the contractor’s bond of his right of action. La.R.S. 38:2247.

Construction Materials, Inc. sold Gatlin Construction Company, a highway contractor, signs, barricades and component parts which were used but not consumed or incorporated in a public works project. In Slagle-Johnson Lumber Co. v. Landis Construction Co., 379 So.2d 479 (La.1980), we held that materials which have been sold, delivered to the construction site, and incorporated into or consumed during the public work are entitled to the protection of La. R.S. 38:2241 and 2242. Therefore, the materials and equipment delivered in this case, which were not consumed or incorporated in the public work, gave rise to no statutorily protected claims.

Construction Materials does not rely on the Public Works Act, however, but contends that it is entitled to recover under the bond by which the surety agreed, in the event of a default by the contractor, to be bound unto “all furnishers of materials and equipment” to “pay all bills for materials . used in the course of the performance of the work.” Standing alone, the contractual language gives the supplier a right of action against the surety on the bond. The surety, nevertheless, contends that regardless of the wording of the bond its obligation cannot extend to the payment of claims unprotected by the statute.

We resolve the question in favor of the material and equipment supplier for these reasons: (1) The Public Works Act does not prohibit a surety company from extending bond coverage to claims for labor, materials and equipment beyond that required by the statute; the plain intent of the statute was to assure those protected by the bond of their right of action against the surety; and (2) The cases relied upon by the defendant are either distinguishable or contrary to the statute.

1.

The Public Works Act was enacted for the purpose of protecting persons doing work, performing labor or furnishing material for the construction, alteration or repair of public buildings, roads or works of any character. See Act 224 of 1918. The statute accomplishes this by providing (1) the governing authority must require of the contractor a bond, with solvent surety, for the faithful performance of the contract and payment by the contractor and his subcontractors for labor or material furnished in the construction, alteration or repair of public works. La.R.S. 38:2241; and (2) generally, a person due money for labor or materials furnished for the construction, alteration or repair of any public works may file a sworn statement of the amount due him with the governing authority and in the mortgage records, which, when timely recorded, makes the governing authority liable for his claim if it is not deducted from payments made to the contractor. La.R.S. 38:2242.

The statute’s aim is to define the types of claims to be given protection and to make the governing authority responsible for their deduction and payment out of the contractor’s receipts. The legislation clearly does not forbid a contractor and his surety from providing security for the payment of claims falling outside the ambit of statutory protection. In fact, the Public Works Act makes clear that it shall not be construed to deprive any person of his right of action on the contractor’s bond. La.R.S. 38:2247, in pertinent part, provides:

“Nothing in this Part shall be construed to deprive any person or claimant within the terms of this Part of his right of action on the contractor’s bond which shall accrue at any time after maturity of his claim . . .

Defendant surety argues that this provision was intended to provide protection only for “a claimant within the terms” of the statute. We think it clear, however, that the section was designed to protect “any person” with a “right of action on the contractor’s bond.” Claimants whose claims fall within the ambit of the statutory protection have no need of the savings clause. It was specifically for the benefit of those persons and claimants whose rights depend solely on the contractor’s bond that the section preserving their actions was added.

The surety also contends that extending coverage of Public Works bonds will conceivably allow extra-statutory claims to dilute the protection afforded traditional claimants and public bodies. These are legitimate concerns addressing themselves to the legislative process, which thus far has given more weight to other considerations. One such consideration might be found in the words of the court of appeal, which aptly suggested that there is “little merit in a rule of law which permits a surety to evade the conditions of its own bond, which it has written, and for which it has charged a premium . . . .” 383 So.2d at 1294.

2.

The surety company relies on several cases in which this Court has said that a public works bond cannot be broader than the law which provides for it; and that anything provided by the bond which goes beyond the provisions of the law must be read out of it. Louisiana Highway Comm, v. McCain, 197 La. 359, 1 So.2d 545 (1941); Long Bell Lumber Co. v. S. D. Carr Const. Co., 172 La. 182, 133 So. 438 (1931); Murphy Iron Works v. U. S. F. & G. Co., 169 La. 163, 124 So. 768 (1929). However, “the decisions of a court of last resort are not the law, but only the evidence of what the court thinks is the law.” Norton v. Crescent City Ice Mfg. Co., 178 La. 135, 145, 150 So. 855, 858 (1933). Previous statements even by this Court cannot supersede what we now see is the plain letter and intent of the statute.

Furthermore, as the learned trial judge observed in his excellent and comprehensive reasons for judgment, only one of our opinions containing this language actually involved a bond required by the Public Works Act which was broader than the act. In Long Bell Lumber Co. v. S. C. Carr Const. Co., supra, the bond, as in this case, provided that the surety, in the event of default by the contractor, would pay for material and labor used in the performance of the work. With two justices dissenting on the issue, this Court conformed a contractor’s bond to the statute’s coverage despite the bond’s broader language. The majority’s opinion totally disregarded Section 3 of the Public Works Act, now La.R.S. 38:2247, which provides that the act shall not be construed to deprive any person of his right of action on the contractor’s bond. The majority erroneously assumed there was no reason to depart from the jurisprudential rule and reached the unwarranted conclusion that the surety should not be held liable for claims to which a public body is immune under the act. In two of the cases relied upon by the majority, the situation was completely the reverse of that presented here, i. e., in those cases the bond was narrower than or inconsistent with the statute. Minden Presbyterian Church v. Lambert, 167 La. 712, 120 So. 61 (1929); Davis v. West Louisiana Bank, 155 La. 245, 99 So. 207 (1924); Id. 155 La. 252, 99 So. 210 (1924). In another case cited with approval, Murphy Iron Works v. U. S. F. & G. Co., supra, the opinion does not indicate whether the bond was broader or narrower than the statute. Only one of the cases cited by the Long Bell Lumber majority involved a bond which was broader than the statute requiring the bond, and that case arose under Act 49 of 1910, a law dealing with the construction of highways, which did not specifically preserve all rights of action under bonds. Miller v. Bonner, 163 La. 342, 111 So. 776 (1926). For these reasons, the Long Bell Lumber Co. case is overruled insofar as it conflicts with La.R.S. 38:2247 and our holding in the present case.

Decree

Accordingly, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated at defendant’s cost.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.

MARCUS, J., dissents, being of the opinion that the judgment of the court of appeal is correct.

      . The rule has also been stated in several court of appeal decisions. See Patent Scaffolding Co. v. Ross Corporation, 172 So.2d 364 (La. App. 4th Cir. 1965); Pittman Const. Co. v. Housing Auth. of New Orleans, 169 So.2d 122 (La.App. 4th Cir. 1964); Martinolich v. Albert, 143 So.2d 745 (La.App. 1st Cir. 1962); Interstate Wholesale Grocery Co., Inc. v. Prutsman, 1 La.App. 731 (1st Cir. 1925).

      . In only two court of appeal cases was the issue squarely addressed. See Patent Scaffolding Co. v. Ross Corporation, supra; Pittman Const. Co. v. Housing Auth. of New Orleans, supra. Both of these cases merely relied on the rule without analyzing it.


author: CALOGERO, Justice. MARCUS, Justice DENNIS, Justice, dissenting.

text:
    LATTER & BLUM, INC. v. Robert R. RICHMOND.
    No. 66856.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Dissenting Opinion Sept. 24, 1980.

      Herman & Herman, Avram C. Herman, Maury A. Herman, New Orleans, for plaintiff-applicant.
    Law Offices of William J. Wegmann, William J. Wegmann, New Orleans, for defendants-respondents.
   CALOGERO, Justice.

The question in this case is whether plaintiff Latter & Blum is entitled to a commission of $878.52 on a lease between defendant Robert R. Richmond and Richmond’s tenant, J. A. Majors Medical Book Company. The trial court awarded the commission and the Court of Appeal reversed, 378 So.2d 546. We granted writs upon application of Latter & Blum to determine whether the Court of Appeal erred in denying them commission on the lease.

Robert Richmond bought a warehouse at 2120 South Roman Street in New Orleans subject to a lease by New Orleans Electrical Supply, Inc. which was scheduled to expire on August 31, 1976. The lease contained a standard clause which prohibited the sublease of the property without the written consent of the owner.

On February 17, 1976, New Orleans Electrical Supply gave a ninety day listing agreement to plaintiff to sublease the warehouse for the remaining six months of its lease. Jack Fisher, a Latter & Blum agent and the listing agent for New Orleans Electrical Supply, then contacted Richmond and asked him if he would pay a commission on any lease Latter & Blum might be able to secure past August 31, 1976. Richmond agreed that he would and signed a letter agreement to that effect on February 25, 1976. The letter contained a clause which stated that any tenant Latter & Blum might secure would be subject to Richmond’s approval.

On Thursday, July 22, 1976, a fire occurred at the offices of J. A. Majors Medical Book Company (hereafter referred to as Majors) on Bienville Street in New Orleans. Majors needed a new warehouse location immediately because their books were exposed to the rain as a result of the fire. They contacted Henry Ogden, a Latter & Blum agent, to find them a suitable location. Ogden had not been able to discover them a suitable location by Saturday and was reduced to driving around looking for owners’ signs. Later that day Robert Cord-er, Vice-President and Director of Commer-

cial Sales and Leasing at Latter & Blum, suggested to Ogden that he look at Richmond’s South Roman Street warehouse. Ogden contacted Fisher, Latter & Blum’s listing agent on the property, to see if the sublessor and/or lessor would agree to the sublease. Fisher did not testify at trial, but a fair reading of the record indicated that Fisher simply informed Ogden that Latter & Blum was authorized to act on behalf of New Orleans Electrical Supply under the exclusive listing agreement. Neither Fisher nor Ogden contacted Richmond at that time. Nonetheless, Ogden moved Majors’ books into the warehouse that same day as it was already raining intermittently and Majors’ merchandise would have suffered substantial damage if it had started raining any harder. Majors signed a sublease with New Orleans Electrical Supply the succeeding Monday.

No one at Latter & Blum made any attempt to contact Richmond either before moving Majors into Richmond’s warehouse or at any time that weekend. On Monday, July 26, 1976, Corder called Richmond, told him of the urgency of the earlier situation, advised him that they had moved Majors in, and asked Richmond if that was agreeable to him. Richmond became very upset, told Corder that Majors was trespassing, that his consent under the lease was required before a subtenant of New Orleans Electrical Supply could be permitted to move in, and demanded that Latter & Blum get Majors out immediately or procure a one year lease “immediately.” He agreed to give Latter & Blum a commission if they procured a lease immediately and in a slightly later conversation he warned Corder, “Bob, if I don’t have that signed lease by Thursday, Majors belongs to me.”

Majors objected to signing a one year lease with Richmond because their Bienville Street lease with Victory Land Company obligated them to continue as tenants in the Bienville Street property if Victory Land could rebuild within 120 days of the fire. Majors did not want to end up leasing two warehouses at the same time. They explained to Latter & Blum that they could not sign a one year lease with Richmond unless Victory Land agreed to waive their 120 day rebuilding clause or Richmond agreed to give Majors the right to cancel the one year lease if Victory Land was able to rebuild within 120 days. Ogden contacted a member of the Schlesinger family, the owners of Victory Land about waiving the 120 day clause, but Victory Land refused to waive it.

There was some discussion between Ogden and Richmond concerning a 120 day cancellation clause in a prospective Richmond — Majors lease, but at no time did anyone at Latter & Blum present to Richmond a proposed property lease with or without a 120 day cancellation clause. By Wednesday (just four days after Majors moved into the property) relations between Latter & Blum and Richmond were rapidly worsening.

On Wednesday Richmond learned in a telephone conversation with Ogden that the Schlesinger family, whom he knew to be major stockholders in Latter & Blum, owned Victory Land Company. This discovery confirmed in Richmond’s mind suspicion that Latter & Blum was not representing his interest in the negotiations. In the same phone conversation with Ogden, Richmond suddenly became angry at Ogden and warned him, “If you don’t have that lease signed immediately, . . ..” Ogden ended that conversation by hanging up on Richmond. Richmond’s confidence in Latter & Blum was also shaken when he received reports that Latter & Blum was continuing to look for another warehouse for Majors at a time when Majors was occupying Richmond’s warehouse without his consent and without having signed any type of lease.

As there seemed to be no progress in the negotiations, Richmond contacted his attorney around Wednesday to see if he could evict Majors immediately. The attorney advised him against precipitous action partially because the eviction process was complicated by the fact that Majors had signed a sublease with New Orleans Electrical Supply, a company which had a valid lease of the building until August 31,1976. Richmond’s attorney wrote a letter on July 30, 1976, to Latter & Blum and Majors informing them that Majors’ possession was illegal and unauthorized, that they would both be held liable for damages. He demanded that Majors vacate the premises immediately. On August 3, 1976, Richmond’s attorney wrote a letter to New Orleans Electrical Supply advising them of their violation of the sub — lease provision of the contract (i. e. no sub-lease without prior written consent of the owner) and notifying them that they had ten days in which to “correct the default.” Copies of this letter were sent to Latter & Blum and Majors.

Richmond thereupon authorized Francis Henry, a real estate agent whom he had known for three to four years, to negotiate a lease with Majors. Henry made several phone calls and thereafter informed Richmond that indeed Majors would not sign a one year lease without a 120 day cancellation clause, but assured him that he had no real risk of losing Majors after 120 days because Victory Land could not possibly rebuild their Bienville Street Warehouse within that time. Henry took Richmond by the burned out warehouse and thereafter Richmond signed a one year lease with Majors on August 11, 1976, at $1.00 per square foot with a 120 day cancellation clause. Henry did not ask for a commission, explaining that only a few phone calls had been involved. And when Richmond insisted upon paying Henry a commission Henry suggested as a matter of professional courtesy that Latter & Blum receive part. Richmond thought little of that suggestion and thereupon paid Henry a full 6% commission on the one year lease, or $878.52.

Plaintiff Latter & Blum filed suit for a commission on the lease. They claimed that they were the procuring cause of the lease and that they would have been able to close the deal if Richmond had given them permission to insert the 120 day cancellation clause into the contract. Richmond filed a reconventional demand asking for damages for trespass.

The trial court dismissed defendant’s claim for damages and found that Latter & Blum was the procuring cause of the lease and was entitled to a commission.

The Court of Appeal upheld the trial court’s dismissal of defendant’s trespass action, but reversed on the commission issue. They held that Latter & Blum breached their fiduciary duty to Richmond under La. Civ.Code art. 3017 which requires a broker to “observe the same fidelity to all parties, and not favor one more than another.” The Court of Appeal reasoned that once this duty had been breached and the contract repudiated, plaintiff’s only right to a commission was based on the “second chance” given to Latter & Blum to negotiate a lease, “immediately.” Finding that Latter & Blum did not consummate the execution of a lease, the Court of Appeal held that Latter & Blum was not entitled to a commission.

We affirm the Court of Appeal’s decision denying plaintiff a commission, but prefer to base our holding on slightly different grounds.

Courts and commentators in Louisiana have wrestled for years with the problem of attempting to define the duties of brokers, particularly real estate brokers. See Yian-nopoulos, Brokerage, Mandate, and Agency in Louisiana: Civilian Tradition and Modern Practice, 19 La.L.Rev. 777 (1959), Comment, The Real Estate Broker-Purchaser Relationship: Louisiana and Common Law, 52 Tul.L.Rev. 157 (1977). The Louisiana Civil Code Articles relied upon by the Court of Appeal define a “broker” as a person “employed to negotiate a matter between two parties, and who for that reason, is considered as the mandatary of both.” La. Civ.Code art. 3016. The obligations of a broker differ from those of an ordinary mandatary in that “his engagement is double, and requires that he should observe the same fidelity towards all parties, and not favor one more than another.” La.Civ.C. art. 3017. However, the courts in Louisiana have supplemented the Code’s mandate articles by reference to common law rules relating to brokerage contracts. 19 La.L. Rev. 794-795. Other duties are imposed upon real estate brokers as the result of the passage of special real estate statutes. See R.S. 37:1431 et seq.

The jurisprudence on the nature and source of the real estate broker’s duties seems confusing even in the relatively straightforward situation where the broker is employed to find a buyer for the property. Some cases impose “common manda-tary” status on the broker at the time he has found a prospective purchaser, Treadaway v. Piazza, 156 So.2d 328 (La.App. 4th Cir. 1963); Uhlich v. Medallion Realty, Inc., 334 So.2d 788 (La.App. 4th Cir. 1976); another has held that a broker becomes a dual fiduciary only after a transaction is consummated, Maloney v. Asehaffenburg, 143 La. 509, 78 So. 761 (1918), while at least one case has held that the Code articles on mandate do not apply to real estate brokers at all and brokers’ duties are limited to those imposed by the real estate licensing statute. Leggio v. Realty Mart, Inc., 303 So.2d 920 (La.App. 4th Cir. 1974).

In Amato v. Latter & Blum, Inc., 227 La. 537, 79 So.2d 873 (La.1956) this Court found that a real estate broker breached his duty to the public at large imposed by the real estate licensing statute when he failed to transmit an offer to his principal, the prospective vendor. Another Louisiana court has found a breach of duty on the part of a broker employed to find a certain type of property who arranged for a friend to buy the property first and then resold it to the purchaser for an inflated price. Uhlich v. Medallion Realty, Inc., supra. Another such breach of duty was found when a broker failed to disclose a known material defect to the purchaser. Norgren v. Harwell, 172 So.2d 723 (La.App. 4th Cir. 1965). Ultimately the precise duties of a real estate broker must be determined by an examination of the nature of the task the real estate agent undertakes to perform and the agreements he makes with the involved parties.

The Fourth Circuit in a case with a somewhat similar fact situátion held that an owner with an exclusive listing agreement with a real estate broker was justified in dealing directly with a prospective tenant and refusing to pay the broker a commission after he discovered that the broker had steered a customer away from his building. Latter & Blum v. Ocean Drilling & Exploration Co., 272 So.2d 53 (La.App. 4th Cir. 1973); See also Samuels, Inc. v. Michaels, 315 So.2d 613 (La.App. 4th Cir. 1975). The court in that case concluded that once the owner learned of the broker’s breach of his duty to make reasonable effort to locate a suitable tenant, the owner could terminate the listing agreement and negotiate an agreement directly with the tenant without paying a commission to the broker.

Whatever the precise scope of the duties Latter & Blum owed Richmond in this situation, these duties certainly included the duty not to induce a trespass to the detriment of the owner’s interest. Latter & Blum went beyond their letter agreement or any right they legally had in moving Majors into the Roman Street property without Richmond’s permission. By moving Majors in without permission Latter & Blum deprived Richmond of his strongest bargaining point - Majors’ urgent need to confect a lease immediately. Once this breach of duty was committed Richmond was justified in terminating the February letter agreement which gave Latter & Blum the right to a commission. If this were not the case a real estate agent could profit by illegally placing a tenant in a building if he fences the owner into a situation where his only feasible economic alternative is to grant a lease to the intruder.

Plaintiff concedes that they had no authority to move Majors in, but they contend that Richmond later ratified that improper action. The record does not support that contention. Richmond’s immediate response to Corder upon being informed of Majors’ occupancy of the building was that Latter & Blum’s actions were illegal and unacceptable to him. Richmond never deviated from his position that Latter & Blum had to get majors out of his building or bring him a signed one year lease agreement immediately. According to the testimony of Latter & Blum’s own employee, Richmond gave them a deadline of Thursday to get Majors’ signature on a lease.

We conclude that as a matter of law Richmond’s obligations under the February letter agreement were terminated when Latter & Blum moved Majors in without Richmond’s permission; and Richmond’s conversation with Corder on Monday reflected that reality. After Monday the only agreement in existence which entitled Latter & Blum to a commission was Richmond’s offer that Latter & Blum would receive a commission if they presented him a signed lease agreement by Thursday. Plaintiff failed to present him a lease by Thursday and there was no agreement on a commission after this deadline. Thus, plaintiff failed to prove the existence of an agreement entitling them to a commission. Shannon Real Estate, Inc. v. Toll, 223 So.2d 693 (La.App. 4th Cir. 1969).

If within the extension granted (to Thursday) Richmond had been presented with a signed lease agreement or had been offered a lease with a 120 day cancellation clause, our decision might be different. However, the record does not show that Richmond was ever presented a lease signed by Majors or even a draft of a proposed lease agreement. At most there was some marginal discussion concerning Majors’ objection to signing a one year lease unless they could be released from Victory Land’s contract or obtain a 120 day cancellation clause. The ease with which Francis Henry completed the negotiations within forty-eight hours after getting involved suggests that Latter & Blum could not have been making very serious efforts to conclude a lease agreement.

Latter & Blum argues that at worse they were afforded until August 13th to secure the lease, by Richmond’s attorney’s letter affording ten days to “correct the default” and that Richmond’s signing the lease with Majors on August 11th made their performance impossible. The fallacy in this argument is that Richmond never gave Latter & Blum any such ten day notice. The only deadline he gave them was Thursday, July 27th. The letter upon which Latter & Blum relies was one which Richmond’s attorney found necessary to serve upon New Orleans Electrical Supply, Richmond’s lessee who was specifically afforded by the written lease ten days to correct defaults. Latter & Blum simply received an acknowledged copy of that letter, which as between Richmond and New Orleans Electrical Supply was a necessary forerunner to institution of eviction proceedings against New Orleans Electrical Supply.

We need not consider Richmond’s recon-ventional demand for damages based on trespass as he failed to properly preserve this issue when he did not seek writs to this Court. Jordan v. Travelers Ins. Co., 245 So.2d 151 (La.1971).

Decree

For the foregoing reasons the judgment of the Court of Appeal is affirmed.

AFFIRMED.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

MARCUS, Justice

(dissenting).

I agree with the trial judge that Latter & Blum, Inc. was the procuring cause of the lease and was entitled to a commission. Any breach of duty by Latter & Blum, Inc. by moving Majors into the property without Richmond’s permission was waived when Richmond subsequently agreed to give Latter & Blum, Inc. a commission if they would procure a lease with Majors. When negotiations broke down because Richmond refused to allow a 120-day cancellation clause in the lease, Richmond negotiated a lease with Majors on the same terms and conditions, including a 120-day cancellation clause. Accordingly, I respectfully dissent.

DENNIS, Justice, dissenting.

I respectfully dissent.

The trial judge apparently found that Latter & Blum did not breach its fiduciary duty to Richmond because the tenant it procured and allowed to move in was actually acceptable to the landlord, who ultimately negotiated a lease substantially on his original terms with the tenant. I am not convinced that the evidence fails to support the trial judge’s findings and conclusions. However, even under the majority’s determination that the broker breached its fiduciary duty, it appears the broker is nevertheless entitled to a fee. The landlord clearly either forgave the breach or extended the contract for a limited time and authorized the broker to continue negotiations. The efforts of the broker, acting under its original contract or an extension thereof, were the procuring cause of the lease ultimately consummated by the landlord with the tenant produced by the broker.

      . Richmond was asking then, as later, for $1.00 per square foot which was a very small increase from the $.93 per square foot charged New Orleans Electrical Supply in a lease that had been negotiated in 1973.

      . Richmond was a man who owned and managed many properties. The warehouse on Roman Street was only one of perhaps fifty pieces of property Richmond owned. While he treated Latter & Blum in this instance as he would any other real estate broker (“bring me a tenant and I’ll pay you a commission”) he testified that he had never done much business with Latter & Blum because he thought that they had too many conflicts of interest. It was this pre-existing feeling he had about Latter & Blum that prompted him to be so hugely upset when they moved Majors into his warehouse without his authorization. Also contributing to his anger was that to a very limited extent he was a business peer of Latter & Blum and his inability to get out of the situation they put him in was an insult to his professional pride. He testified that other real estate people had told him he was foolish in allowing Majors to continue occupancy without a lease.

      .At trial Ogden admitted that he had continued to look for another warehouse for Majors up until the date Majors signed a lease with Richmond.

      . Francis Henry died before trial and thus did not testify.

      . Francis Henry had called Richmond about another matter when the subject of Richmond’s trouble with the Roman Street property came up. Richmond told Henry that he was too upset to talk about it, but Henry told Richmond that he would come talk to him about the problem. After they met and discussed the situation Henry offered to help.


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

text:
    STATE of Louisiana v. Arnold R. DYER.
    No. 67030.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Dissenting Opinion Sept. 24, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Michael W. Campbell, Louise S. Korns, Asst. Dist. Attys., for plaintiff-relator.
    Charles Michael Winters, New Orleans, for defendant-respondent.
   MARCUS, Justice.

Arnold R. Dyer was charged by bill of information with attempted concealment of a firearm on his person in violation of La. R.S. 14:27 (La.R.S. 14:95). Defendant filed a motion to quash the information contending that it failed to charge an offense which is punishable under a valid statute. The trial judge granted the motion. On the state’s application, we granted certiorari under our supervisory jurisdiction to review the correctness of this ruling.

The facts as supplied by defendant’s memorandum in support of his motion to quash are as follows: At about 11:45 p.m. on January 14, 1980, as defendant was walking down a street in New Orleans, he was observed by a police officer who noticed a weapon protruding from defendant’s right front pocket. The officer arrested defendant for carrying a concealed weapon. Subsequently, defendant was charged by information with an attempt to conceal a weapon on his person.

No evidence was adduced at the hearing on defendant’s motion to quash. The issue was submitted on the pleadings. Though the trial judge’s reasons for granting defendant’s motion do not appear in the record, the state, in brief to this court, states that the trial judge found there can be no attempt to carry a concealed weapon.

La.R.S. 14:95(A)(1) provides:
A. Illegal carrying of weapons is:
(1) The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person

In State v. Fluker, 311 So.2d 863 (La. 1975), we stated that:

[A] weapon, although not in “full, open view,” is nonetheless not a “concealed” weapon if it is sufficiently exposed to reveal its identity. If the weapon is carried in a manner that reveals its identity, its carrier cannot be presumed to have intended to conceal it and, accordingly, is not in violation of the statute. [Footnote omitted.]

We further stated in Fluker:

The appropriate test to be applied in prosecutions for illegal carrying of weapons is whether, under the facts and circumstances of the case as disclosed by the evidence, the manner in which defendant carried the weapon evinced an intent to conceal its identity.

La.R.S. 14:27 provides that an attempt, specific intent to commit a crime and an act in furtherance of the purpose, is a separate but lesser grade of the intended crime and La.R.S. 14:5 provides that one who commits an offense which includes all of the elements of other lesser offenses may be prosecuted for and convicted of either the greater offense or one of the lesser and included offenses.

In prosecutions for illegal carrying of weapons, the state must prove that a defendant specifically intended to conceal the weapon on his person. Because a defendant’s guilt is based on his intent to conceal, rather than the extent of his concealment, his conduct would be such that he either did or did not commit the substantive offense. In other words, the nature of the offense is such that proof of the attempted offense proves the substantive offense, as the elements of the attempted offense are the same as that of the substantive offense. Hence, it is obvious that attempted concealment, comprising the identical elements, cannot be a “lesser grade” of La.R.S. 14:95(A)(1). Proof of the elements of attempted concealment would not be proof of a “lesser offense” under La.R.S. 14:5 but would be proof of the greater offense alone. Accordingly, we agree with the trial judge’s ruling that there can be no attempt to carry a concealed weapon.

DECREE

For the reasons assigned, the ruling of the trial judge granting defendant’s motion to quash the bill of information is affirmed.

LEMMON, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

LEMMON, Justice,

dissenting.

The circumstances of a particular case may show that a person has the specific intent to conceal a weapon and has done an act tending directly toward the accomplishment of that object, despite the fact that the proscribed concealment was not in fact accomplished. Under such circumstances the person would be guilty of attempted illegal carrying of weapons.

There are some crimes which are not susceptible of an attempt, usually because the specific intent required for an attempt by R.S. 14:27 is not compatible with the elements of the particular crime. For example, since one cannot have a specific intent to commit the offense of negligent homicide, there can be no such crime as attempted negligent homicide. But one can specifically intend to conceal a weapon, and an unsuccessful effort to accomplish concealment is attempted illegal carrying of weapons.

Defendant was charged with an offense punishable under a valid statute, and the motion to quash the bill of information should have been denied.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Under the statutory scheme, it appears to me that the crime of illegal carrying of weapons requires proof that the defendant had the general intent to conceal a firearm and that he actually concealed the weapon, La.R.S. 14:95(A)(1); whereas, attempted illegal carrying of a weapon would require the prosecution to prove that the defendant had the specific intent to commit the crime and that he committed an act toward concealment. La.R.S. 14:27; 95(A)(1).

      . 381 So.2d 1243 (La. 1980).

      . As a practical matter an attempted concealment of weapons, without actual concealment, will seldom occur. Furthermore, there is a real danger that a person (such as the defendant in the Fluker case) legally carrying a partially concealed weapon will be charged by an overzealous policeman or prosecutor with attempted illegal carrying of weapons. Nevertheless, it is possible to attempt to commit the offense of illegal carrying of weapons, and any prosecuto-rial abuse can probably be corrected by the trial court or by appellate review for sufficiency of evidence of specific intent, and if this solution is not workable, the' Legislature can correct the problem.