author: BLANCHE, Justice. DIXON, Chief Justice MARCUS, Justice LEMMON, Justice, DENNIS, Justice.

text:
    STATE of Louisiana v. Jerry L. DEVITO.
    No. 67261.
    Supreme Court of Louisiana.
    July 8, 1980.
    On Rehearing Dec. 15, 1980.
    Joseph J. Tosh, Gretna, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
   BLANCHE, Justice.

We granted writs on defendant/relator’s application to consider whether, during his incarceration in a New Jersey prison, prescription ran on the state’s prosecution against him for armed robbery.

On October 3, 1976, a warrant was issued for relator’s arrest charging that he had committed a robbery in Jefferson Parish on October 1, 1976. A telegram dated February 12, 1977 from Monmouth County, New Jersey law enforcement authorities advised the Jefferson Parish Sheriff’s Office of relator’s whereabouts, namely, that he was being detained in the Monmouth County Jail. On February 16,1977, some four days later, prosecution was instituted against relator by the filing of a bill of information by the District Attorney of Jefferson Parish. Relator bases his claim of prescription on La.C.Cr.P. art. 578, which provides:

“Except as otherwise provided in this Chapter, no trial shall be commenced: (1) In capital cases after three years from the date of institution of the prosecution; (2) In other felony cases after two years from the date of institution of the prosecution; and (3) In misdemeanor cases after one year from the date of institution of the prosecution. The offense charged shall determine the applicable limitation.”

Thus, it appears that in this non-capital felony case, since the prosecution was instituted by filing a bill of information on February 16, 1977, no trial of petitioner would be permitted after February 16, 1979 unless some fact operated to interrupt that prescriptive period under the provisions of La.C.Cr.P. art. 579. That article provides:

“The period of limitation established by Article 578 shall be interrupted if: (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.
“The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.”

The state suggests that indeed, prescription was interrupted because defendant’s presence at trial could not be obtained for reasons beyond the control of the state. The state submits that relator would not waive extradition and that the state made a good faith effort to extradite him. While we do not impune the good faith of the state, the record reveals that relator was not extradited to Louisiana and his trial commenced within the prescriptive period of two years from the date of the filing of the charges against him because of the state’s fault.

From the documentary evidence which appears in the record, we are of the opinion that the lengthy delay in obtaining an order of extradition was caused by neglect. The first attempt at extradition failed because the documents sent to the State of New Jersey were incomplete; there appeared to have been no re-extradition agreement included among them. Furthermore, there is a time gap in the state’s efforts to pursue extradition from September 1, 1977 to some time in the fall of 1979, no clear 1979 date being shown in the record. The New Jersey court did not hold a hearing on the matter until October, 1979, and no judgment was rendered until November 8, 1979. In our opinion, the State of Louisiana failed to show that it had been unable to obtain defendant’s presence because of any “cause beyond the control of the state”, and now that the time limit of Art. 578 has run, the state will be barred from continuing the prosecution.

Prior jurisprudence in this area has been inconsistent. State v. Shushan, 206 La. 415, 10 So.2d 185 (1944), which applied a similar but earlier statute, contains reasoning consistent with that expressed in the instant case. In Shushan, supra, the state knew at all times of the whereabouts of the defendants, and we held that incarceration did not act as an interruption of the running of prescription and that where the state did not pursue the legal means available to it to return the defendant to the jurisdiction of the court then prescription would operate as a bar to prosecution.

However, State v. Dupree, 256 La. 146, 235 So.2d 408 (1970) appears to be an incorrect application of the present statute. There, the defendant fled this state and his whereabouts were unknown. The state later learned of the defendant’s incarceration in Mississippi, and after serving four years in prison there, he was returned to Louisiana for trial. We held that prescription was interrupted while the defendant’s whereabouts were unknown, and that when they did become known, prescription did not begin to run anew when neither the state nor defendant did anything to bring the prosecution to trial. We read Art. 578 as mandating trial within two years after institution of this prosecution unless the state can show a valid and continuing interruption under Art. 579. To the extent that Dupree would permit the state to delay commencement of trial without bearing the burden of showing valid reasons therefor under the exceptions set out in Art. 579, that case is overruled.

For the reasons assigned herein, the ruling of the court below is reversed and the case remanded with the order that defendant’s motion to quash be granted and further proceedings below be dismissed.

REVERSED AND REMANDED with orders.

DIXON, C. J., dissents with reasons.

MARCUS, J., dissents and assigns reasons.

LEMMON, J., dissents and assigns reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Unless there is a constitutional infirmity in C.Cr.P. 579, we ought to apply it. If the defendant at any time flees and is out of the state, the prescription against prosecution is interrupted.

MARCUS, Justice

(dissenting).

I respectfully dissent for reasons assigned by Chief Justice Dixon.

LEMMON, Justice,

dissenting.

C.Cr.P. art. 575 and 579(1) represent an application of the fundamental principle of prescription that time should not run against the party required to act when the opposing party prevents him from acting. Official Revision Comment (a), C.Cr.P. art. 575. Here, not only did defendant flee from Louisiana, and not only was he out of the state during the period between the state’s institution of prosecution and defendant’s motion to quash the charge, but also he refused to waive extradition, thereby remaining out of the state for the purpose of avoiding prosecution. We should hold prescription interrupted at least as long as the defendant is resisting extradition.

ON REHEARING

DENNIS, Justice.

The result we reached on original hearing is correct.

This case hinges on whether prescription was interrupted on the period of limitation for bringing defendant’s case to trial. Article 579 of the Code of Criminal Procedure provides that the period of limitation shall be interrupted if:

“(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
“(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.”

Clause (1) of Article 579 simply restates the fugitive from justice rule contained in Article 575. See Comment (b) under Article 579. This rule is an expression of the fundamental principle of any system of limitations that time should not run against the person required to act, when he is unable to act and particularly if the opposing party prevents him from acting. See Comment (a) under Article 575.

Clause (2) of Article 579 was suggested by State v. Shushan, 206 La. 415, 19 So.2d 185 (1944), in which this Court rejected the state’s argument that the time limitations should not run because of defendant’s out of state incarceration on the ground that the presence for trial of the accused could have been obtained by legal process. See Article 579, Comment (d). The case of State v. Dupree, 256 La. 146, 235 So.2d 408 (1970), which disregarded the words and the intention of the legislature in Article 579(2) and this Court’s holding in Shushan, is expressly disapproved.

The state bears the heavy burden of showing that it is excused from trying an accused on a charge later than the period mandated by Article 578. State v. Driever, 347 So.2d 1132 (La.1977). We conclude that the state has not met its burden and that the prosecution must be dismissed.

Although one might surmise that the defendant departed Louisiana with the purpose to avoid apprehension, there was no evidence from which the trial judge could so find, unless it was the alleged incriminating facts set forth in the arrest warrant affidavit. We need not consider, however, whether these facts were properly in evidence or sufficient to support the judge’s finding.

Interstate extradition of persons charged with crime in one state and found in another state is provided for by the federal constitution. U.S.Const. Art. IV, § 2. Implementing state legislation has been universally adopted. See La.C.Cr.P. Title VI, Extradition, Preliminary Statement. Louisiana and New Jersey are among the forty-eight states which have adopted the Uniform Extradition Act. La.C.Cr.P. arts. 261 et seq.; N.J.S.A. 2A:160-6 to 2A:160-35.

After receiving notice of the defendant’s whereabouts, the state was no longer unable to act in apprehending the defendant or unable to obtain his presence for trial by legal process. Accordingly, it necessarily follows that any interruption of the period of limitation which existed under Article 579(1) or (2) ceased when the state regained its capacity to act. The period of limitation began anew at this time and expired without any further interruption.

The state has failed to carry its heavy burden of showing that it was unable to act or prevented from acting to obtain defendant’s presence for trial after it received notice that defendant was incarcerated in New Jersey and susceptible to extradition. The delays and problems encountered by the state in extradition, or those caused by its own mismanagement, cannot be charged to the defendant. The court system cannot excuse itself from affording an accused a trial within the delay required by law, simply by relying on internal operating procedures which result in non-compliance with the statutory mandate. See State v. Driever, supra, 347 So.2d at 1134. Furthermore, the defendant’s refusal to consent to his delivery to Louisiana authorities without extradition did not render the state helpless or deprive it of legal process by which it could have obtained the presence for trial of the accused. It merely required the state to resort to its constitutional and statutory powers of extradition.

For the foregoing reasons, the decision reached by the majority on original hearing is reinstated. The ruling of the court below is reversed and the case remanded with the order that defendant’s motion to quash be granted and further proceedings below be dismissed.

REVERSED AND REMANDED WITH ORDERS.

DIXON, C. J., and LEMMON, and MARCUS, JJ., dissent.

      . Defendant did change his position in December, 1978 (after being sentenced to serve eight to twelve years in New Jersey) by asserting his right to a speedy trial, an action which arguably began the running of prescription. However, within a few months thereafter the state obtained the signatures of both governors to re-extradition papers and set the case for trial, all prior to the filing of the motion to quash.


source: Caselaw Access Project

author: WATSON, Justice. LEMMON, Justice, DIXON, Chief Justice DENNIS, Justice, LEMMON, Justice. MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Terry A. TOLEDANO.
    No. 66727.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Concurring Opinion Sept. 24, 1980.
    On Rehearing Dec. 15, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Robert F. Barnard, Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant — appellant.
   WATSON, Justice.

During Toledano’s trial for first degree murder, counsel for defendant, while cross-examining juvenile witness Reginald Yawls, moved for production of a “rap sheet” on the juvenile. The only argument urged on the appeal of Toledano’s conviction of manslaughter is that the trial court committed reversible error in denying the motion.

Yawls was the principal, but not the only, witness connecting Toledano with the killing of Moses Green at the victim’s apartment in New Orleans East. Yawls testified that he met Toledano on the street, that they smoked some “weed” and that Toleda-no talked Yawls into accompanying him to Green’s apartment. Yawls had been led to believe that the two of them would be paid by Green in return for sexual favors. Upon arrival at Green’s apartment, according to Yawls, he went into the bathroom and then heard two shots. Returning to the living area, he found Toledano with a pistol in his hand and Green lying dead with wounds in the arm and in the head. Other witnesses connected Yawls with a pistol which was established later by ballistic tests to have fired the bullets.

It was revealed during Yawls’ testimony that the prosecution had allowed him to plead guilty to manslaughter in return for testifying against Toledano. This evidence was adduced prior to the defense motion for production of a rap sheet on Yawls. Since the witness was only seventeen at the time of trial, a rap sheet could have contained only a record of juvenile offenses, if any.

No particular reason was assigned by defense counsel for the requested information except by allusion to a claim that it would be exculpatory under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The record does not indicate whether the prosecution had a rap sheet on Yawls.

The issue on appeal is whether the defendant is entitled to obtain the criminal record of a juvenile witness, when the apparent object is to cast doubt on the witness’ general character.

As previously held by this court:

“. .. an adjudication that a juvenile has committed an offense is not a determination that the child was a criminal, ‘nor shall such adjudication be deemed a conviction.’ La.R.S. 13:1580(5) (1974). It was thus improper impeachment of the appellant’s credibility, since only a conviction of a crime may be used for such purpose. La.R.S. 15:495. (Furthermore, juvenile records are ordinarily privileged information. La.R.S. 13:1586 (1950).” State v. Roberts, 331 So.2d 11 at p. 13 (1976), rev’d on other grounds, 431 U.S. 633, 97 S.Ct. 1993, 53 L.Ed.2d 637 (1977).

Also, the Louisiana Juvenile Code, enacted in 1978 and amended in 1979, provides in part as follows:

“All records and reports of the court, probation officers, and law enforcement agencies concerning matters or proceedings under the juvenile jurisdiction of the court are confidential and shall not be disclosed except as provided by law.” Art. 122 A.

The defendant relies heavily on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In Davis, juvenile witness Green, who identified the defendant as having a crowbar in his hand where a safe was found broken open, was not implicated in the crime. The witness was on juvenile probation. Counsel for defendant attempted to question him concerning his probationary status, particularly whether he feared being accused of the theft of the safe and having his probation revoked. The trial judge sustained the State’s objection to the cross-examination. On review by the United States Supreme Court, it was noted that the cross-examination sought to show Green’s possible bias and prejudice because of his vulnerable status as a probationer. Davis held that the State’s interest in protecting the anonymity of juvenile offenders is outweighed by the need for cross-examination to establish any bias and prejudice.

Davis is distinguishable from the present case oh more than one ground. The request for the production of the rap sheet apparently was an attempt to discover past involvements by Yawls with the law, a subject on which he had been cross-examined. Also, the participation by Yawls in the homicide had been fully explored, as well as his plea bargain with the State. The jury was aware that Yawls had made a deal with the State and had pleaded guilty to the crime of manslaughter. The situation differs from Davis where a specific purpose was shown for the cross-examination, the importance of which outweighed the policy of confidentiality. Therefore, in the present case, there was established no need or requirement for production of a rap sheet which would outweigh the statutory policy of the State of Louisiana protecting the confidentiality of juvenile proceedings.

The assignment of error is without merit and the conviction and sentence of defendant are affirmed.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

DIXON, C. J., dissents with reasons.

DENNIS, J., concurs with reasons.

CALOGERO, J., dissents.

LEMMON, Justice,

dissenting.

The trial judge erred in denying the motion to produce the juvenile’s “rap sheet”. The juvenile participated in the crime and pleaded guilty to manslaughter pursuant to a plea bargain. He then became the chief witness for the prosecution in defendant’s trial.

When the defense counsel moved for production of the rap sheet for purposes of cross-examining the chief witness against defendant, the trial judge was faced with a choice between protecting the confidentiality of any prior juvenile proceedings against this witness (who was a self-acknowledged participant in the crime at issue) and protecting defendant’s right to confront the witnesses against him. The extreme importance and constitutional status of the right to confrontation requires that any right to confidentiality of juvenile proceedings under these circumstances must yield.

This constitutional problem was resolved by statute in the federal system when the Congress adopted Rule 609(d) of the Federal Rules of Evidence, which provides:

“Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.”

See also the Advisory Committee’s Note, which observes that the strategic importance of a particular witness may be so great as to require the overriding of general policy in the interest of justice. Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967).

Under the circumstances of the present case I believe that when defense counsel made a request for specific exculpatory evidence, the trial court should have either ordered production of the evidence to the defense or submission of the evidence to the judge for an in camera inspection to determine its materiality. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

It is not clear from the record whether the prosecution had the juvenile’s rap sheet in its possession, but if so the defense was clearly entitled to use it for cross-examination and impeachment, if it represented materially favorable evidence. I would therefore set aside the conviction and remand the case for production of the rap sheet for inspection by the trial judge and for determination of whether the suppressed evidence might have affected the verdict. Brady v. Maryland, above.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The case should be remanded for a hearing to determine whether there is a “rap sheet,” and whether it would impeach the witness.

DENNIS, Justice,

concurring.

I respectfully concur.

Although I must disagree with the majority opinion’s statement that Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), can be meaningfully distinguished, I ultimately conclude that the conviction should be affirmed because it does not appear at this time that the introduction of Yawls’ juvenile record would create a reasonable doubt about guilt when evaluated in the context of the entire record. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Harvey, 358 So.2d 1224 (La.1978); State v. Falkins, 356 So.2d 415 (La.1978); State v. May, 339 So.2d 764 (La.1976).

ON REHEARING

LEMMON, Justice.

The sole argument urged in this appeal of defendant’s conviction of manslaughter is that the trial court committed reversible error in denying defense counsel’s motion for production of a “rap sheet” on the state’s witness, Reginald Yawls.

Yawls, a juvenile, was the principal witness connecting defendant with the killing of Moses Green. Other witnesses connected Yawls with the pistol that was shown by ballistic tests to have fired the fatal bullets. Both defendant and Yawls were initially charged with first degree murder.

Yawls subsequently pleaded guilty to manslaughter and agreed to testify against defendant. At defendant’s trial Yawls testified: He met defendant on the street, and after they smoked some “weed”, defendant talked him into going to Green’s apartment, indicating that Green was a homosexual who paid for sexual favors. After they arrived at Green’s apartment, he went into the bathroom and then heard two shots. Returning to the living area, he found defendant with a pistol in his hand and Green lying dead on the sofa.

During cross-examination of Yawls, defense counsel moved for production of the witness’ Bureau of Identification rap sheet. The prosecution argued the defense was not entitled to production, and the trial court denied the motion. Thereafter, the witness stated he had never been convicted of any crime, but the trial court sustained objections to inquiries about specific convictions or court appearances.

On original hearing we held that the trial judge under the circumstances correctly applied the state’s statutory policy of protecting the confidentiality of juvenile proceedings. We now hold that the trial judge erred in denying the motion to produce Yawls’ “rap sheet” without first determining the content of that document.

When defense counsel moved for production of the rap sheet for purposes of cross-examining the prosecution’s chief witness, a juvenile who had been charged with murder and had been allowed to plead guilty to a lesser offense, the trial judge was faced with a choice between protecting the confidentiality of any prior juvenile proceedings against this witness and protecting defendant’s right to confront the witnesses against him. The extreme importance and constitutional status of the right to confrontation (which includes the reasonable opportunity to impeach the witness’ credibility) requires that any statutory right to confidentiality of juvenile proceedings under these circumstances must yield if the discrediting value of a prior juvenile adjudication is such that its disclosure is essential to a fair trial.

Under circumstances such as those presented in this case, the trial court, upon request by defense counsel for specific relevant evidence with possible impeachment value, must order submission of the witness’ record of juvenile adjudications for an in camera inspection to determine its materiality. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Babin, 319 So.2d 367 (La.1975); Tate, J., concurring; State v. Sylvester, 388 So.2d 1155 (La.1980). The question in each case, in which such a request is made, is whether the witness’ juvenile adjudication has such discrediting value that there is reasonable likelihood it would have affected the verdict and thus, under Agurs and La.Const. art. 1, § 16 (1974), must be viewed as evidence favorable to the accused. State v. Sylvester, above; State v. Falkins, 356 So.2d 415 (La.1978).

In the present case, the trial court, in understandable reliance upon the statutory confidentiality and the past decisions of this court [C.J.P. art. 122 A; State v. Roberts, 331 So.2d 11 (La.1977)] did not determine whether the co-participant witness had a record of prior adjudications and whether the impeachment value of those adjudications outweighed the witness’ statutory interest in the confidentiality of those records. In such a determination a balance must always be struck based upon the facts and circumstances of an individual case. Obviously, not all juvenile adjudications of all state witnesses have a discrediting value which is sufficient to require disclosure and admissibility for impeachment purposes. On the other hand, a prior adjudication of a co-participant who has become a state witness may be sufficiently probative of the witness’ veracity to necessitate disclosure. See Luck v. United States, 348 F.2d 763 (D.C.Cir.1965).

Thus, this matter must be remanded for submission of Reginald Yawls’ record of juvenile adjudications. If the trial court finds, under the principles discussed above, that the circumstances require a new trial, judgment shall be entered accordingly. On the other hand, if the trial court decides that the conviction should stand, then the defendant may seek' review by this court of that ruling.

Accordingly, this matter is remanded for further proceedings.

MARCUS, J., dissents and assigns reasons.

WATSON, J., dissents, being of the opinion that the original decision was correct.

MARCUS, Justice

(dissenting).

I do not believe that introduction of Yawls’ juvenile record would create a reasonable doubt about guilt when evaluated in the context of the entire record. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Accordingly, I dissent from the remand. I would affirm the conviction and sentence.

      . Toledano was sentenced to 21 years.

      . Records in juvenile cases are privileged and are not subject to public inspection. R.S. 13:1586; C.J.P. art. 122. Therefore, the trial court’s denial of defense counsel’s request effectively precluded the defense from discovering Yawls’ juvenile record.

      . This constitutional problem was resolved by statute in the federal system when the Congress adopted Rule 609(d) of the Federal Rules of Evidence, which provides:
      “Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence."

      See also the Advisory Committee’s Note, which observes that the strategic importance of a particular witness may be so great as to require the overriding of general policy in the interest of justice. Giles v. Maryland, 386 U.S. 66, 86 S.Ct. 1194, 16 L.Ed.2d 205 (1967).

      . In the Agurs case the Supreme Court stated:
      “Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.”

      . This decision does not conflict with C.J.P. art. 123 B, which authorizes the trial court to disclose juvenile records to any person upon a particular showing of good cause to believe that the records are “relevant to a specific ... proceedings”. This decision simply construes that statutory authorization in conformity with the constitutional rights of the accused.


author: BLANCHE, Justice. LEMMON, Justice, MARCUS, Justice

text:
    Albert SINITIERE, Jr., et al. v. Gerald W. LAVERGNE et al. Gerald W. LAVERGNE v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 67482.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.

      Norman L. Sisson, Marshall W. Wroten, Robert J. Jones, Baton Rouge, Christopher B. Fruge, Ville Platte, for defendant-applicant.
    J. Minos Simon, J. Minos Simon, Ltd., Anthony M. Fazzio, Lafayette, Jones, Walker, Waechter, Poitevent, Carrere & De-negre, Dennis Doise, Onebane & Donahoe, Metairie, for plaintiff-respondents.
   BLANCHE, Justice.

At issue in this case is whether the Court’s decision in Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979), compels a finding that the Department of Transportation and Development (Department), is solely liable for damages whenever a motorist inadvertently steers his vehicle onto a road shoulder containing a dangerous rut and loses control of the vehicle, thereby injuring himself and others.

On May 19, 1977, a clear day, at approximately 3:00 p. m., Gerald Wayne Lavergne was driving a van owned by his employer, Microfilm Consultants, Inc. (Microfilm) in an easterly direction on Louisiana Highway 182, an undivided 2-lane highway, when he inadvertently allowed his two right wheels to ease onto the eastbound shoulder of the road. Knowing that his vehicle was partially on the shelled shoulder, Lavergne allowed the van to slow to about 35-40 miles per hour while planning his re-entry onto the travel portion of the road. At the point where Lavergne attempted to maneuver the vehicle back onto the highway, there was a 3V2 to 4 inch drop from the travel portion of the highway to the east bound shoulder portion of the highway. Contact between one or both of Lavergne’s right wheels and the elevated edge of the roadway resulted in Lavergne losing control of the vehicle and careening across the center line of the highway into the oncoming traffic lane. The van struck the west bound vehicle driven by Cyrilla Henry and occupied by Florentine Sinitiere head-on, fatally injuring the two women and seriously injuring Lavergne.

The survivors of Mrs. Sinitiere and Mrs. Henry instituted wrongful death and survival actions against Lavergne, his employer and the Department. Various incidental actions were filed, including a third party demand by Lavergne against the Department, the plaintiffs and his alleged insurer, a third party demand by the Department against Lavergne, and an intervention by State Farm Automobile Insurance Company (State Farm), as subrogee, to recover payments made to two of the plaintiffs under policies issued by the company to those persons. Gerald Lavergne filed a separate original action against the Department for the injuries he sustained. Both suits were consolidated for trial.

The trial court concluded that the highway department was negligent in failing to correct a hazardous condition despite actual or constructive knowledge of the defect. The court also concluded that Lavergne was negligent in running off the road at a time when there was no immediate danger which required him to do so, citing Hopkins v. Dept. of Highways, 167 So.2d 441 (La.App. 1st Cir. 1964), writ denied, 246 La. 885, 168 So.2d 268 (1964). Further, the evidence established that at the time of the accident Lavergne was driving within the course and scope of his employment, thereby rendering Microfilm vicariously liable for Lavergne’s negligence. C.C. art. 2320.

Judgment was rendered in favor of the Sinitiere and Henry survivors and State Farm against Lavergne, the Department and Microfilm, in solido. As between the defendants, the court ordered the Department to contribute one-half the judgment and Lavergne and Microfilm to bear the other one-half. Judgment was entered in favor of Lavergne against his insurer in the amount of $10,000.

In Lavergne’s separate action against the Department, the trial judge found that Lavergne’s own negligence was a contributing factor to the injuries sustained by him and, accordingly, rendered judgment against Lavergne and in favor of the Department.

Gerald Lavergne appealed the judgments in both cases while the Department appealed only the judgment rendered against it.

While the appeals were pending in this case, this court decided the Rue case, supra, wherein we held that mere inadvertence in allowing one’s vehicle to stray from the travel portion of a highway onto its shoulder is not necessarily such substandard conduct as constitutes negligence barring recovery against the highway department for injuries caused by defective conditions on the shoulder. The case expressly overruled Hopkins v. Department of Highways, supra, relied upon by the trial court, which held otherwise.

The appellate court, relying upon Rue, affirmed the judgment in favor of plaintiffs and against the Department in the Siniti-ere — Henry case, but amended such judgment to exclude defendants Lavergne and Microfilm from liability. In Lavergne’s suit, the judgment was reversed and the Department held liable to Lavergne. The Department applied for Writs of Certiorari on the liability issue in each case, which this Court granted. La.Const. art. 5, § 5.

NEGLIGENCE OF THE DEPARTMENT

It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.

Since road shoulders are only designed for temporary use when a motorist finds himself off the roadway, the Department’s duty of care is generally discharged at a level of construction and maintenance less than that required for the primary road surface. However, an implicit necessity for the functional use of a shoulder is a connection between the roadway and shoulder that allows for safe gradual movement from one to the other.

The duty to maintain reasonably safe highways and shoulders extends to the protection of those people who may be fore-seeably placed in danger by an unreasonably dangerous condition. In the past this duty was held to extend to the protection of those persons who had to drive onto the shoulder because an emergency condition made travel on the main portion of the roadway hazardous. Hopkins, supra. It was later held to include people who reasonably believed that conditions required them to drive onto the shoulder although no actual hazard existed. Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), writ denied 342 So.2d 218 (La.1977). In Rue, supra, the rule was clarified to include persons who drove onto the shoulder inadvertently where there was neither knowledge nor reason to know of either a defective condition of the shoulder itself or any other condition that would make such action hazardous (such as a car on the shoulder of the road). Likewise, passengers in vehicles that strayed from the road were within the ambit of the duty. Rue, supra. From this, there can be no doubt but that the duty extends to passengers and drivers in one vehicle who are likely to be injured when a driver of another vehicle goes out of control because of a negligently maintained shoulder. Thus, the plaintiff's decedents in the Sinitiere-Henry suit, as well as Lavergne, are within the ambit of the Department’s duty to maintain reasonably safe highway shoulders.

A review of the trial record leads this Court to the conclusion that the lower courts were not manifestly erroneous in their conclusion that the Department breached its duty to plaintiff’s decedents. As was stated by the trial court:

“Louisiana Highway 182 was inspected 3 or 4 days prior to the accident. Witnesses testified that the drop off had existed for some time prior to the accident. Mr. Whitney Lasseigne, St. Martin Parish Highway Superintendent [for the Department of Transportation] testified that a 2 inch drop from the highway to the shoulder is dangerous. The guidelines followed by his department, prepared by the Department of Highways, states that more than a one (1) inch drop should not be allowed.”

Further, Mr. Lasseigne testified that he could have interrupted the regular work schedule of his road crews to correct the defect at issue if he had felt that the situation necessitated immediate action. This testimony, coupled with other competent testimony that the drop off in question was 3V2 to 4 inches at the point at which Lav-ergne’s vehicle struck the curb, was sufficient to show breach. The shoulder condition was dangerous, the Department knew, or should have known, of the condition, and the Department could have expediently corrected the situation prior to the accident.

For the foregoing reasons, the Department must also be said to have breached its duty to Mr. Lavergne since he was within the scope of the Department’s duty.

Negligence is only actionable where it is both a cause in fact of the injury and a legal cause of the injury. Legal cause requires a proximate relation between the actions of a defendant and the harm which occurs and such relation must be substantial in character. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905 (La.1973). Using a “but-for” test to determine cause in fact clearly results in a finding that the accident would not have resulted had the road shoulder been substantially even with the travel portion of the road. Further, there is a substantial relationship between the failure to correct a highway defect and an automobile accident, the type of risk encountered by plaintiffs’ decedents and Lavergne.

LAVERGNE’S NEGLIGENCE

A motorist’s duty of reasonable care includes the duty to keep his vehicle under control. Russo v. Guillory, 322 So.2d 233 (La.App. 4th Cir. 1975), writ denied 325 So.2d 608 (La.1976). Further, a motorist has a duty to maintain a proper lookout for hazards which by the use of ordinary care and observation he should be able to see in time to avoid running into them. Southern Farm Bureau Casualty Ins. Co. v. Gay, 276 So.2d 893 (La.App. 1st Cir. 1973). This duty, at the very least, runs in favor of passengers riding in the motorist’s vehicle as well as to those occupying other vehicles on the highway for the risk of harm associated with automobile accidents.

Since the trial judge ruled, prior to this Court’s decision in the Rue case, that Lav-ergne was negligent solely because he allowed his vehicle to stray from the road in the absence of an emergency, he saw no need to make findings of fact concerning other actions of Lavergne that might have constituted negligence. The appellate court, however, having the benefit of the Rue decision, examined the record and concluded that Lavergne’s actions after he found himself on the shoulder were not sufficient to constitute negligence barring recovery by him. The court further concluded that under the Rue doctrine, even if Lavergne’s re-entry were substandard, he would not be barred from recovery occasioned chiefly because of the Department’s negligence. With neither conclusion can this Court agree.

In Rue, supra, this Court stated that a motorist’s duty to drive reasonably does not extend to the risk of injury from striking an unexpected and unexpectable hazard resulting from a negligently maintained highway shoulder. The reason for this statement was the jurisprudentially recognized rule that a motorist has a right to assume that highway shoulders are maintained in a reasonably safe manner in the absence of knowledge or reason to know of a defect. This language does not establish the highway shoulder as a “zone of recovery” for every straying motorist. Rather, it states the simple principle that the law will not automatically bar a person from recovery or charge him with liability vis-a-vis third parties where the law does not charge that person with actual or constructive knowledge of an avoidable danger. Thus, if a person is chargeable with knowledge of a shoulder defect that could cause serious injury and, nevertheless, disregards his own safety and the safety of others, the law considers his actions in leaving the main travel portion of the roadway to be a breach of his duty to himself and to the others who can reasonably be expected to be injured by his actions. See Rodgers v. Department of Highways, 376 So.2d 1295 (La.App. 2d Cir. 1979); Morrow v. Department of Highways, 377 So.2d 430 (La.App. 2d Cir. 1979).

A review of the record leads this Court to the conclusion that Gerald Lavergne did breach the duty of reasonable care owed himself and other motorists in his vicinity at the time he attempted to re-enter the travel portion of the highway.

Lavergne testified that he had no actual knowledge of the low condition of the shoulder. Lavergne and others testified that at the point at which Lavergne’s right wheels left the travel portion of the roadway, there was only a slight depression, if any, on the shoulder. Since Lavergne had neither knowledge nor reason to know of the low shoulder at the point at which he left the highway, his actions in leaving the roadway did not per se constitute negligence.

The testimony of investigating Officer Ackel was to the effect that about 100 feet before the point at which Lavergne attempted to re-enter the travel portion of the roadway, the east bound shoulder began descending while the roadway continued along its even plane. The depression continued past the point at which Lavergne attempted to re-enter the roadway and gradually went as low as 5 inches below the travel portion of the highway. Thus, Lav-ergne’s vehicle, positioned partially on the road and partially on the shoulder, moved from a place in the roadway where his vehicle was perfectly parallel with the plane of the road to a position where the right side of his vehicle was 3Vz to 4 inches lower than the left side. The angle of Lavergne’s vehicle caused by this condition coupled with the presence of a continuing depression along the highway in front of Lavergne’s vehicle leads us to the conclusion that Lavergne should have known that something was seriously wrong before, in effect, attempting to jump a 3'/2 to 4 inch curb while going 35 to 40 miles per hour. This conclusion is strengthened by the testimony of Mr. Steven Killingsworth, an expert in mechanical engineering, to the effect that there was no way any person could have controlled a vehicle making a re-entry onto the highway under the conditions then existing while travelling at the speed at which Mr. Lavergne made his attempt.

Lavergne attempted to counter this proposition by producing Mr. Earl Picard, an expert in the field of accident investigation and safety, driver safety and defensive driving. Mr. Picard testified that a reasonably safe driver in Lavergne’s situation would have been “aiming high” or looking straight ahead rather than looking at the ground immediately in front of his vehicle and that, therefore, the drop in the road would not have been evident. Whatever advantages “aiming high” might have in general, it certainly cannot be a justification for not seeing a significant depression on a highway shoulder at a point where a driver attempts to re-enter the main portion of the roadway from the shoulder.

Mr. Lavergne’s actions were more than just a cause-in-fact of the accident. The breach of his duty to observe what he should have seen had a substantial relation to the harm encountered by himself and the decedents. Thus, he is liable to the survivors of Mrs. Sinitiere and Mrs. Henry and is precluded from recovering from the Department.

RESPECTIVE LIABILITY OF DEFENDANTS

“When actionable negligence of two tortfeasors contributes in causing harm to a third party, each of them is responsible for the damage. They are solidarily liable.” Dixie Drive It Yourself System, supra, 137 So.2d at 301. Since we have determined that both Gerald Lavergne and the Department were negligent in their actions and that each actor was a substantial cause of the tragic accident involved here, it follows from the foregoing passage that they are debtors in solido.

Only the Department of Highways applied for a Writ of Certiorari. It is a longstanding policy of this Court that a judgment will not be amended by this Court to benefit a party who did not apply for certiorari. Carollo v. Wilson, 353 So.2d 249 (La.1977); Gulotta v. Cutshaw, 283 So.2d 482 (La.1973). Since the survivors of Mrs. Sinitiere and Mrs. Henry did not petition this Court to grant judgment in their favor against Lavergne and his employer, this Court will not do so. The Department, however, was granted a Writ of Certiorari for consideration of not only its liability to Lavergne and the other plaintiffs’ decedents, but also the liability of Lavergne to the plaintiffs. In this respect the Department was asking for, at the very least, a reimposition of liability onto Lavergne. Since the Department filed a third party demand against Lavergne and Microfilm, we hereby grant judgment in favor of the Department for contribution due one solida-ry obligor by another.

In the case of Sinitiere et al. v. Lavergne et al., the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated to the extent that it is not inconsistent with the views expressed herein.

In the case of Lavergne v. Department of Transportation and Development et al., the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated.

Costs of this proceeding and the appeal of this matter are assessed one-half against the Department and one-half against Gerald Lavergne and Microfilm Consultants, Inc.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.

DIXON, C. J., concurs.

LEMMON, J., concurs and assigns reasons.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

DENNIS and WATSON, JJ., dissent in part and concur in part, being of the opinion that the Court of Appeal was correct.

LEMMON, Justice,

concurring.

Lavergne’s fault that was a legal cause of this accident was not his allowing his vehicle to move off the highway, but rather his attempting to reenter at a speed of 40 miles per hour in the face of oncoming traffic. He owed a duty to the oncoming motorists not to attempt reentry at that time into the single open lane, since the foreseeable momentary loss of control (caused jointly by his action and by the Department’s failure of maintenance) created a risk to the oncoming motorists that was encompassed within the duty not to reenter under those conditions.

MARCUS, Justice

(concurring in part and dissenting in part).

I consider that the sole proximate cause of the accident was the negligence of Lav-ergne in allowing his vehicle to stray from the road in the absence of an emergency and then attempting to re-enter the traveled portion of the highway while going 35 to 40 miles per hour. Accordingly, I respectfully concur in part and dissent in part.

      . Sinitiere et al. v. Lavergne et al., 15th Judicial District Court, Docket No. 71663 D.; Court of Appeal, Third Circuit, 381 So.2d 522.

      . Lavergne v. Department of Transportation and Development, 15th Judicial District Court, Docket No. 783458. Court of Appeal, Third Circuit, 381 So.2d 528.

      . This Court is not called upon at this time to decide the applicability of C.C. art. 2317 to the facts of this case.

      . Because of the date of the accident in question, this Court need not determine the effect of Acts 1979, No. 431, § 1, upon the respective liability of the parties.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Cecil Lavon BEATTY.
    No. 67419.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Glenn Gremillion, Asst. Dist. Atty., for plaintiff — appellee.
    C. Frank Holthaus, Boren, Holthaus & Perez, Baton Rouge, for defendant-appellant.
   LEMMON, Justice.

In this appeal from convictions of separate offenses of distribution of marijuana and possession of marijuana with intent to distribute and from the sentences imposed, defendant urges trial court error in denying his motion to withdraw the guilty pleas, in imposing an excessive sentence, and in failing to comply with the sentencing guidelines of C.Cr.P. art. 894.1.

Facts

In February, 1978 defendant was arrested for distributing marijuana in October, 1977 and was released on bail. Formal charges were filed in April, 1978, but, for reasons not explained in the record, no action was taken on the bill of information for 18 months.

In July, 1979 defendant was again arrested, this time for possession of marijuana with intent to distribute. A local newspaper thereafter published an editorial critical of the district attorney for not taking more expeditious action in cases of controlled substance violations, mentioning defendant’s case by name.

Shortly thereafter, on August 6, 1979, the state moved to set the distribution case for trial. Defendant was arraigned on August 8, 1979, and the matter was set for trial on September 17, 1979.

At trial defense counsel orally moved for a continuance, citing his client’s poor health and his own lack of preparation. The trial judge denied the motion, and the case proceeded to trial. On the second day of trial, plea negotiations were renewed during the noon recess, and an agreement was reached. Defendant agreed to plead guilty to the charge of distribution of marijuana then being tried, as well as to the pending charge of possession of marijuana with intent to distribute. The prosecution in turn agreed not to pursue charges against defendant’s wife. Both sides further agreed to a recommended sentence of five years on each count, with the two sentences to be served concurrently.

The trial judge apparently accepted the recommended plea bargain, and during the colloquy leading to the guilty plea the trial court advised defendant that he would impose the five-year concurrent sentence in accordance with the agreement. The trial judge personally examined defendant in conformity with the jurisprudential guidelines set forth in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971) and accepted the guilty plea, concluding that defendant was knowingly and voluntarily entering the plea. Defendant was released on bail pending sentence. See La. Const, art. 1, § 18 (1974); State v. Glass, 389 So.2d 398 (La.1980); C.Cr.P. art. 314.

Defendant thereafter changed lawyers and apparently entertained second thoughts about his plea agreement. On the date set for sentencing, defendant filed a motion to withdraw his guilty plea, but the trial court denied the motion and imposed sentence in conformity with the plea agreement.

Motion to Withdraw Guilty Plea

Defense counsel imaginatively argues that defendant’s plea was a “capitulation” and should be set aside as the product of coercive influences which overwhelmed the will of a physically weak and emotionally distraught man. Essentially, the claim is that the trial judge should have allowed withdrawal of the plea in the interest of justice. We disagree, concluding that the trial judge did not abuse his discretion in denying the motion to withdraw.

An examination of the' record of the guilty plea reveals a meticulous effort on the part of the trial judge to explain the rights waived and possible consequences. Defendant’s responses satisfied the judge that his plea was voluntary and was offered in awareness of its consequences.

The trial judge considered and rejected the contention that defendant’s plea resulted from a sense of hopelessness due to inadequate representation by his original lawyer. The showing made at the hearing on the motion to withdraw the guilty plea did not satisfy the trial court that defense counsel’s level of preparation was so inadequate as to render him unable to advise the defendant effectively concerning his guilty plea. Although the charge was dormant for about 18 months, there was over a month between the arraignment and the date set for trial. Compare State v. Winston, 327 So.2d 380 (La.1976).

As to defendant’s physical condition, he may have suffered from various ailments, but there has been no showing that his state of health substantially impaired his effective participation in his defense. See State v. Karno, 342 So.2d 219 (La.1977). His illness may have indeed made the burden of trial more difficult, but the trial court was satisfied that it was not so severe as to deprive the defendant of the ability to understand the rights waived and other consequences of his guilty plea. The evidence regarding defendant’s physical condition does not warrant a conclusion that defendant’s weakened physical condition produced an involuntary guilty plea.

It is important to remember that the defendant chose, with the advice of counsel, between going to trial for selling marijuana to a police agent and pleading guilty with an agreed sentence. For a defendant, a guilty plea often involves a choice between undesirable alternatives. The fact that neither road offers the prospect of a pleasant journey does not render the plea involuntary as a matter of law.

The United States Supreme Court has upheld the validity of plea bargaining, despite the undeniable pressures imposed by the choice to be made. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1974); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The difficulty of choice is exactly why counsel’s role at the guilty plea is absolutely critical in assuring that the defendant is able to weigh his options intelligently. In the Bordenkircher decision the Court commented:

“Plea bargaining flows from ‘the mutuality of advantage’ to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial.” 434 U.S. at 363, 98 S.Ct. at 667 (citations omitted).

When a defendant enters a counselled plea of guilty, this court will review the quality of counsel’s representation in deciding whether the plea should be set aside. Here, defendant did not establish that counsel’s representation was not within the range of competence demanded of attorneys in criminal cases. See Moore v. United States, 432 F.2d 730 (3rd Cir. 1970). The trial judge therefore did not abuse his broad discretion in denying defendant’s request to withdraw his guilty plea. C.Cr.P. art. 559; State v. Wade, 364 So.2d 575 (La.1978); State v. DeManuel, 321 So.2d 506 (La.1975).

Compliance with Sentencing Guidelines

It is tempting to dispose of this matter by simply holding that the sentencing guidelines statute, C.Cr.P., art. 894.1, was not designed to guide and assist the trial court in approving agreements as to recommended sentence, reached by the prosecution and the defense after negotiations, and therefore need not be followed in cases involving imposition of the recommended sentence. Despite the logic of this position, we are not compelled to reach that issue in this case, because the trial judge adequately complied with C.Cr.P. art. 894,-l.

In a written judgment imposing the concurrent five-year terms agreed upon during the plea negotiations the trial judge stated:

“The Defendant, having been regularly charged in a Bill of Information, regularly filed, with the crime of VIOLATION OF THE LOUISIANA UNIFORM CONTROLLED DANGEROUS SUBSTANCES LAW (DISTRIBUTION OF MARIJUANA) and having been duly arraigned, and having entered a plea of GUILTY to said charge and after having made a thorough study of the defendant, the Court feels there is an undue risk, that during the period of a suspended sentence or probation, the defendant will commit another crime.
“The conclusion being reached, in part, based upon the fact that Beatty was convicted of Grand Larceny in Mississippi and served penitentiary time in that state. The Court also notes that this is one of two distribution of marijuana charges that Beatty pled guilty to on this date. He was arrested on February 2, 1978, for this crime and released on bail bond. While on bail bond, he distributed marijuana again, and was arrested on July 9, 1979, indicating to the Court that he intends to persist in the business of dealing in drugs.
“The defendant also is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution. The Court is reliably informed that Beatty sometimes uses drugs himself, which is contraindicative to his poor health. Custodial care will prevent him from using drugs.
“A lesser sentence will deprecate the seriousness of the defendant’s crime, it being noted that Beatty has been given a five-year sentence on each of two charges, but the Court providing that the sentence shall run concurrently. Hence, he has been given only two and a half years for each crime.”

Defendant contends, however, that even if the written judgment contained a statement of considerations taken into account and the factual bases therefor sufficient to comply with the statute, the judgment was not written until after sentencing in court. Compliance with C.Cr.P. art. 894.1 requires that the reasons and facts considered be stated contemporaneously with the imposition of sentence, the purpose being to give defense counsel an opportunity to respond or to correct any inaccurate information prior to sentencing. Here, the written judgment was filed the day of sentencing. Moreover, the trial court’s statements at sentencing reflected essentially the same considerations and facts incorporated in written judgment. While the trial judge’s statement that defendant while on parole “distributed marijuana again” is inaccurate, the judge evidently was placing emphasis on the continuing drug activity heralded by the second arrest.

This assignment is without merit.

Excessive of Sentence

It is also tempting to dispose of this issue on the basis that defendant is bound by his agreement with the prosecution and that, absent a showing that would entitle him to have the plea set aside, he cannot complain of the sentence imposed. However, we need not decide the issue because the defendant’s sentence is plainly supported by the record and the articulated reasons of the trial court.

Defendant was previously convicted of the felony of grand larceny in Mississippi. Although the prior conviction occurred many years before the offenses in question, that conviction can and should be considered. Further, defendant’s possession of marijuana with intent to distribute, while on bail pending disposition of his initial charges, leads us to conclude that the judge did not act harshly and excessively in sentencing the defendant to serve concurrent five-year prison sentences. Defendant’s willingness to engage in the same type of criminal activity while on bail certainly manifests a willingness to flout the law and justifies a more severe sentence than may be appropriate for a one-time offender whose conduct pending trial reflects a greater respect for law. Despite the defendant’s poor health and disabilities, he has no license to possess and distribute controlled dangerous substances.

The sentence actually falls within the lower range, in view of the severe maximum sentence which could have been imposed. Thus, the record in this ease does not reflect any manifest abuse of discretion which would warrant disturbance of the sentencing discretion exercised by the trial judge. See State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Jones, 381 So.2d 416 (La.1980).

Accordingly, the defendant’s conviction and sentence are affirmed.

      . This court has examined the colloquy which was introduced during the hearing on defendant’s motion to withdraw the plea and notes that the trial judge exhaustively canvassed the rights being waived by acceptance of the plea and the consequences of the plea. The colloquy reflects an assiduous effort by the trial judge to assure himself that defendant’s plea was voluntary.

      . The motion was timely, inasmuch as it was filed and disposed of prior to imposition of sentence. C.Cr.P. art. 559.

      . Because defendant did not reserve the right at his plea to urge on appeal any error in the denial of his oral motion for a continuance, that denial will be considered only in deciding whether the trial judge abused his wide discretion in denying defendant’s motion to withdraw his guilty plea.

      . Defendant does not challenge the adequacy of the “Boykin-Jackson” examination conducted by the judge. See State ex rel. Jackson v. Henderson, above.

      . We will also, of course, review the record to assure compliance with our decision in State ex rel Jackson v. Henderson, above. See State v. Williams, 384 So.2d 779 (La.1980).

      . For a thorough discussion of the factors employed to evaluate the competence of counsel, see Justice Dennis’ thoughtful and scholarly decision in State v. Myles, 389 So.2d 12 (La.1980).

      . In State v. Jones, 381 So.2d 416 (La.1980) we held that compliance with the guidelines statute was not required in cases in which the sentence imposed was not “apparently severe”.

      .Clearly, the sentence agreed upon by the parties is not binding upon the judge, who must consider the overall interests of society and the individual defendant in deciding whether to accept a sentence recommendation. In this regard the guidelines statute may greatly assist the judge in deciding whether to approve and follow the plea agreement concerning an appropriate sentence. Of course, if the trial court decides to reject the proposed sentence, he may refuse to accept the guilty plea unless it is offered with the understanding that the recommendations regarding sentence are not binding on the court. See F.R.Cr.P. 11(e).

      . The Legislature amended the codal articles on probation in 1970 to prohibit trial judges from imposing suspended sentences except for first felony offenders. See C.Cr.P. art. 893. An exception to the rule barring probation for second offenders exists in cases in which the accused is committed to a narcotics rehabilitation program. The limitation does not appear to provide an exception for out-of-state felony convictions or for felony convictions which are over a specified number of years old. Compare R.S. 15:529.1; C.Cr.P. art. 893 (as enacted by Acts 1966, No. 310). See State v. Jones, 327 So.2d 417 (La.1976).
      Thus, we perceive a legislative directive that second felony offenders should generally not be given probation, even if the former conviction occurred in the distant past.

      . As pointed out in State v. Underwood, 353 So.2d 1013 (La.1978), concurrent as opposed to consecutive sentences are preferred in cases of multiple convictions for non-violent felonies.

      . Each count was punishable by a term of imprisonment at hard labor for not more than 10 years, or by a fine of not more than $15,000, or both. See R.S. 40:966 A and B.


author: PER CURIAM. LEMMON, Justice,

text:
    STATE of Louisiana v. Derrick BELL and Jimmy Thomas.
    No. 67394.
    Supreme Court of Louisiana.
    Nov. 19, 1980.
    Rehearing Denied Jan. 9, 1981.

    Dissenting Opinion Feb. 2, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant, Jimmy Thomas.
    Ernest Lee Caulfield, New Orleans, for Derrick Bell, defendant-appellant.

       Dennis and Lemmon, JJ., would grant a rehearing.

   PER CURIAM.

Affirmed.

LEMMON, J., dissents for reasons assigned.

LEMMON, Justice,

dissenting.

Evidence of physical abuse of co-defendant in the same case by the same officer is relevant to the issue of whether defendant’s confession was coerced and is probative on the probability of use of coercion by that officer. The evidence may also be used to attack the officer’s credibility after he denies use of coercion in obtaining confessions.

The trial court erred in refusing to hear the witnesses offered by defendant to show his co-defendant’s confession was coerced. I would remand the case for retrial of the motion to suppress. See State v. Simmons, 328 So.2d 149 (La.1976).


author: PER CURIAM.

text:
    STATE of Louisiana v. Robert Neal GREEN.
    No. 67703.
    Supreme Court of Louisiana.
    Nov. 19, 1980.
    Rehearing Denied Jan. 9, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., George Perez, Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    Scotty G. Rozas, J. Wade Smith, Lake Charles, for defendant-appellant.
   PER CURIAM.

Defendant Robert Neal Green was charged by bill of information with aggravated burglary, La.R.S. 14:60, and attempted aggravated rape, La.R.S. 14:27 (14:42). The two counts were jointly tried to a twelve person jury, which on December 4, 1979, found defendant guilty as charged. Thereafter, the trial court sentenced him to serve thirty-five years at hard labor without benefit of parole for the attempted rape and ten years at hard labor for the burglary, to be served concurrently. On appeal he relies upon three assignments of error for reversal of his conviction and sentence.

Defendant correctly argues that the denial of parole eligibility on his sentence for attempted aggravated rape was unlawful. The completed offense would have been punishable by life imprisonment without benefit of parole, probation or suspension of sentence. La.R.S. 14:42, as amended by acts 1978, No. 239, § 1. However, the penalty for attempt was prescribed by La.R.S. 14:27(D)(1), as follows:

“If the offense so attempted is punishable by death or life imprisonment, [one convicted of attempt] shall be imprisoned at hard labor for not more than fifty years.”

Because the statute does not prescribe ineligibility for parole, probation or suspension of sentence, the trial court could not lawfully so qualify defendant's sentence. See, State v. Welch, 368 So.2d 965 (La.1979) (on application for rehearing). Accordingly, the sentence must be set aside.

We have reviewed defendant’s remaining assignments of error and found them to be without merit.

Defendant’s convictions and sentence for aggravated burglary are affirmed, but the sentence for attempted aggravated rape is set aside and the case is remanded for re-sentencing in accordance with law.


text:
    STATE of Louisiana v. Alfred HARRISON, Sr.
    No. 80-KA-1410.
    Supreme Court of Louisiana.
    Nov. 19, 1980.
    Rehearing Denied Jan. 9, 1981.

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

       Dennis and Watson, JJ., would grant a rehearing.

   PER CURIAM.

Affirmed.

DENNIS and WATSON, JJ., would remand for articulation of reasons for sentencing.


author: MARCUS, J.,

text:
    Joseph JOHNSON, Jr. v. CONTINENTAL INSURANCE COMPANIES et al.
    No. 80-C-2806.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In Re: Joseph Johnson, Jr., applying for remedial writs and stay order, Parish of Terrebonne, Number 58,890.

WRIT GRANTED. TRIAL COURT ORDER VACATED. The order of the district court directing plaintiff/relator to submit to a physical examination by a different physician from the one who examined him on January 30, 1980 is vacated. La.R.S. 23:1121 requires an injured employee to submit to an examination by a physician provided by employer “as often as may be reasonably necessary and at reasonable hours and places.” Defendants’ motion for a physical examination fails to allege facts showing the need for an examination or the necessity of another physician’s opinion on this matter.

MARCUS, J.,

dissents, being of the opinion that there is an insufficient showing to say that the trial judge abused his discretion.


author: WATSON, J.,

text:
    STATE of Louisiana v. Kevin JAMES and Earl Pierre.
    No. 80-0-2796.
    Supreme Court of Louisiana.
    Dec. 11, 1980.
   In Re: State of Louisiana through the District Attorney, Harry F. Connick applying for Supervisory Writs, Parish of Orleans, No. M-105-196. and M-105-269.

Writ granted in connection with that state application concerning Kevin James. Stay order continued in effect until further order of this Court.

Since no application has been filed by the state with respect to the juvenile Earl Pierre we take no action in that case except to vacate the stay order heretofore granted.

WATSON, J.,

dissents from the continuance of the stay order, being of the opinion that the juvenile has not been “charged” until indicted or a bill of information filed.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Nancy T. DIXON.
    No. 67493.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Walter Perkins, Allen W. Helm, III, John R. Harrison, Asst. Dist. Attys., for plaintiff-appellee.
    Carey J. Ellis, Jr., Rayville, for defendant-appellant.
   WATSON, Justice.

Defendant, Nancy T. Dixon, was convicted of possession of marijuana with intent to distribute in violation of LSA-R.S. 40:967. She was fined $1,000 (or 6 months in jail); sentenced to 4 years at hard labor, suspended; and placed on active probation for a period of 5 years. One condition of probation was 4 months in the Ouachita Parish Jail.

Defendant appeals her conviction on the basis of one assignment of error: i. e., the trial court should have suppressed the marijuana because it was seized pursuant to an unconstitutional search. Although a warrant was obtained to search for the marijuana, defendant contends that it was invalidly based on an earlier intrusion of privacy. The only witness at the hearing on the motion to suppress was Deputy Jay Via of the Ouachita Parish Sheriff’s office, whose testimony was as follows:

On January 3,1979, Officer John Pipes of the Monroe Police Department was investigating a report that a missing juvenile girl might be found at a trailer on Louisiana Highway 34 in West Monroe. Since the trailer was beyond the Monroe City limits, the Ouachita Parish Sheriff’s office was contacted for assistance. Deputy Via went with Pipes to the trailer around 9:00 P.M. that night. Pipes went to the rear of the residence and Via to the front door. Via knocked several times but received no response. He looked through a glass pane of the door into the living room, which was illuminated. Via saw a fishbowl containing numerous small plants that he thought were marijuana and a cigarette he also suspected was marijuana.

Officer Pipes and Deputy Via executed an affidavit attesting to their observation of the fish bowl containing suspected marijuana plants and a green plastic container with growing plants also suspected to be marijuana. The affidavit recites that the officers waited at the trailer. A Chevrolet arrived containing defendant Dixon and two males. The car stopped in the driveway before proceeding to the trailer. Investigation revealed that a bag of marijuana had been thrown out of the car window when the car stopped. The officers arrested the three. Shortly thereafter, an Oldsmobile and a Pontiac arrived, both containing subjects with marijuana and marijuana paraphernalia.

On the basis of the affidavit, a search warrant was issued at 11:55 P.M. and the officers returned to seize marijuana and other drug paraphernalia from the trailer and the three cars.

The Louisiana Constitution of 1974, Article 1, Section 5, and the Fourth Amendment to the Constitution of the United States prohibit unreasonable searches and invasions of privacy. The burden of proving an unconstitutional search is on the defendant. State v. Boyd, 349 So.2d 1256 (La., 1977).

Basically, defendant’s contention is that the officers had no right to be at the doorway of the trailer; that their mere presence was an intrusion. It is argued that the report of a missing juvenile was a pretext, a fabrication designed to justify the officers’ expedition. However, there is no evidence to support this hypothesis. Defendant did not call Officer Pipes on cross-examination or introduce any other evidence to contest Deputy Via’s second hand account of why the two officers were at the trailer. The record does not show whether the Monroe police investigation was based on a report from the juvenile’s parents, an acquaintance, a relative or an anonymous source. All Deputy Via knew was that Officer Pipes needed a deputy to accompany him to the trailer. There is no indication that these officers were at the trailer to gather evidence against the defendant. The only evidence is that they were present for a legitimate purpose, unconnected with what they discovered. See State v. Nine, 315 So.2d 667 (La., 1975).

The doorway of the trailer was private property, but it was not a place where defendant had an expectation of privacy. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). These two officers had the same right as other members of the public to approach the doorway and see what was exposed by the owner to the view of the general populace. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). While there, they inadvertently observed what appeared to be contraband. There was no intrusion into a protected place. See United States v. Hersh, 464 F.2d 228 (U.S. 9 Cir. 1972). Compare State v. Fearn, 345 So.2d 468 (La., 1977).

Defendant failed to establish that the officers unconstitutionally invaded her privacy by looking through a glass pane of the front door. The trial court was correct in overruling the motion to suppress.

For the foregoing reasons, the conviction and sentence of defendant are affirmed.

AFFIRMED.

      .Among the items seized were:
      A. From the Pontiac:
      (1) Plastic bag of marijuana in a jacket.
      (2) Plastic bag of marijuana residue.
      (3) Metal clip with suspected marijuana residue.
      B. From the Chevrolet:
      (1) Suspected marijuana residue in ashtray.
      (2) Pouch with currency amounting to $790 in glove box.
      C. From the Trailer:
      (1) Fishbowl with suspected marijuana plants.
      (2) Green plastic container with suspected marijuana plants.
      (3) Suspected marijuana cigarette.
      (4) Tupperware container with suspected marijuana.
      (5) Bamboo pipe with suspected marijuana residue.
      (6) Plastic bag with suspected marijuana under a counter.
      (7) Large trash bag with suspected marijuana residue under a counter.
      (8) Water pipe with suspected marijuana residue.
      (9) Brown box with 15 bags of suspected marijuana in a closet.
      (10) Plastic bag with suspected marijuana in a closet.
      (11) Aquarium in bedroom containing suspected marijuana plants.
      (12)Jar of suspected marijuana seeds in bedroom.
      (Tr. 13)

      . Louisiana Constitution of 1974, Article 1, Section 5 provides:
      •‘Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court,”

      . The Fourth Amendment to the Constitution of the United States provides:
      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”


author: DIXON, Chief Justice.

text:
    Lawrence J. HENLEY, Jr. v. F. G. SULLIVAN, Jr., Contractor, Inc., et al.
    No. 67717.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Law Offices of Cyrus J. Greco, Cyrus J. Greco, Baton Rouge, for plaintiff-applicant.
    Owen, Richardson, Taylor, Mathews & Atkinson, Daniel R. Atkinson, Baton Rouge, for defendants-respondents.
   DIXON, Chief Justice.

The plaintiff suffered an employment related injury on July 3,1978. His employer’s compensation insurer issued its first check to plaintiff on July 21, 1978 for $240.12, which was intended to cover compensation benefits for the first three weeks of disability at a rate of $80.04 per week. The record does not indicate how this figure was calculated, nor was the insurer’s agent able to give any explanation for it.

Plaintiff’s attorney, who was under the mistaken impression that plaintiff was earning $4.85 an hour at the time of his accident, wrote letters to the employer and the insurer, on August 7 and 23, requesting an increase in compensation benefits to $126.10 per week. No adjustment was made in the weekly benefits. On September 19, in response to an inquiry from the insurer, the employer made a complete breakdown of plaintiff’s wages for the period preceding his accident. Although plaintiff did earn $4.85 an hour during one period, his wage record showed that he was paid at a $4.00 hourly rate in the weeks prior to the accident. Based upon this information, the proper compensation payment should have been $106.67 per week. Again, however, no adjustment was made.

Plaintiff filed suit on October 31. On November 16 compensation payments were increased to $106.67, made retroactive to the time of the injury. These payments continued until December 8, when plaintiff began to receive a weekly check of $129.33, again made retroactive to the time of the injury. Plaintiff was pronounced fit to work on March 13, 1979 at which point compensation benefits were discontinued.

The trial court found that plaintiff was no longer disabled after March 13, and that the compensation insurer’s failure to pay the full amount due to plaintiff in the initial months after his accident had not been arbitrary or capricious. The First Circuit affirmed. Henley v. F. G. Sullivan, Jr., Contractor, 385 So.2d 497 (La.App.1980).

The sole issue now presented for review is whether the compensation insurer arbitrarily failed to pay plaintiff the full amount of compensation benefits due on a weekly basis, thus incurring liability for penalties and attorney’s fees under R.S. 22:658.

R.S. 22:658 states in part that an insurer shall make payments due under the workers’ compensation act:

“... within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, ... together with all reasonable attorney’s fees for the prosecution and collection of such loss, ...”

The insurer evidently had satisfactory proof of plaintiff’s employment related disability by July 21, when it issued its first payment. The law is quite clear that when an employee suffers a temporary total disability, he is entitled to receive two-thirds of his wages during the period of his disability. R.S. 23:1221(1). Although there may have been a genuine dispute over the $4.85 hourly wage figure, the fact that plaintiff was earning at least $4.00 an hour was not open to doubt. Again, the law is clear that an employee’s weekly wage must, at a minimum, be calculated upon a forty hour week. R.S. 23:1021(7)(a). Under these circumstances, it should have been a simple matter for the insurer to conclude that plaintiff was entitled to at least two-thirds of $160.00 per week, or $106.67.

At the trial on the merits, the insurer’s agent was asked to explain the basis for the initial compensation benefits of $80.04 per week. He replied: “I’m embarrassed to tell you that I really can’t come up with the basis for the rate that she used.” This statement must be taken as an admission that the initial calculation of compensation benefits was without a rational foundation and was unsupported by any information that could easily have been obtained from the employer. There is no evidence in the record to indicate that the error was a clerical one. Cf. Moore v. St. Paul Fire & Marine Ins. Co., 251 La. 201, 203 So.2d 548 (1967). Rather, the error seems to have been made in applying the plain and unambiguous provisions of the law. See Malone & Johnson, Workers’ Compensation § 389 (1980).

The record indicates that, at the latest, the insurer was apprised of a discrepancy in its payments by August 23, when plaintiff’s counsel communicated his understanding that plaintiff’s pay at the time of his accident was $194.00 per week. The letter constituted a demand for proper payment. Steadman v. Pearl Assurance Co., 242 La. 84, 134 So.2d 884 (1961). Under R.S. 22:658, the insurer is given sixty days from demand to begin making payments in the proper amount. Yet the insurer in the present case did not make an adjustment until November 16, after suit had been filed. Under these circumstances, we find that the insurer’s failure to make an adjustment of its weekly compensation payments within sixty days of plaintiff’s demand was entirely arbitrary and unreasonable. An insurer cannot, as apparently is the case here, pluck a figure out of the air in determining its payments and escape the sanctions of the statute. Moreover, the insurer was sent a complete report concerning plaintiff’s prior wages on September 19, and still delayed almost two months before making an adjustment.

The trial court’s determination that plaintiff was entitled to $106.67 in weekly payments has become final and definitive. C.C.P. 1841-42. This being the case, the insurer’s retroactive payments of $129.33 have more than satisfied the 12% penalties imposed by R.S. 22:658. According to the statute, plaintiff’s counsel is entitled to “all reasonable attorney’s fees for the prosecution and collection” of the difference between the amount of benefits actually paid and the amount which was due. Because the record affords no basis for determining what fees would be reasonable, the matter is remanded to the district court for an evidentiary hearing in order to make that determination.

The opinion of the appellate court is reversed; the matter is remanded for further proceedings consistent with this decision, at defendants’ cost.

      . This figure is itself the result of a miscalculation. If plaintiff was paid an hourly wage of $4.85, his gross weekly earnings would have been $194.00. Two-thirds of this figure is $129.33, not $126.10.

      . See R.S. 23:1221 and R.S. 23:1021(7).


author: BLANCHE, Justice.

text:
    BOUCHER & SLACK CONTRACTORS, INC. and Bronner Investment Company, Inc., a joint venture v. Harvey McLEAN, Jr., Liquidator of Woodlands of Huntington, Inc., et al.
    No. 67806.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      James Fleet Howell, Wiener, Weiss, Madison & Howell, Charles E. Tooke, Jr., Shreveport, for plaintiffs-applicants.
    Charles B. Peatross, Peatross & Greer, Charles G. Tutt, Cook, Clark, Egan, Yancey & King, Shreveport, for defendants-respondents.
   BLANCHE, Justice.

Relator, Boucher & Slack Contractors, Inc. and Bronner Investment Company, Inc. hereinafter referred to as “contractors”, filed suit to enjoin the defendant bank, Commercial National Bank of Shreveport, from honoring a draft presented to it pursuant to a letter of credit issued to Harvey McLean, Jr., presently the liquidator of Woodlands of Huntington, Inc., hereinafter referred to as “owner”. The trial court denied the injunction and ordered the defendant bank to honor the draft, but required the bank to pay the funds into the registry of the court pending the judicial determination of whether the contractor was in default of his contractual obligation to construct an apartment project for owner. Actually, the letter of credit was issued by the contractors in favor of the owner in lieu of a performance bond.

The owner asserted that he was entitled to the funds in accordance with the letter of credit and that the trial court, after denying the contractors injunctive relief, should not have ordered the funds paid into the registry of the court. On appeal to the Second Circuit Court of Appeal, 382 So.2d 1030, that court agreed with the owner and ordered the funds in the registry of the court paid to him. Contractors thereafter applied for a writ to this Court, 385 So.2d 794, and the same was granted to determine the correctness of the court of appeal judgment ordering the funds transferred from the registry of the court to the owner.

After argument before this Court on November 10, 1980, contractors filed a plea of mootness, setting forth a stipulation between the contractors and the owner. This stipulation was made at a scheduled hearing before the trial court on October 14, 1980 for the purpose of requiring the defendant to post an appeal bond in excess of that originally set by the court.

The stipulation is as follows:

“BY COUNSEL FOR OWNER:
Your Honor, the defendants stipulate that the funds that are now in the registry of the Court are to remain in the legal custody and registry of the Court pending the disposition of this case on the merits.
BY COUNSEL FOR CONTRACTORS:
Your Honor, I would like for the record to clarify and confirm that — notwithstanding any disposition the Louisiana Supreme Court may make with respect to this Court’s earlier ruling by placing the funds in the registry of the Court; that the funds will remain in the registry of the Court notwithstanding which way the Louisiana Supreme Court may decide that issue.
BY COUNSEL FOR OWNER:
Your Honor, the defendants are in accord with that.
BY THE COURT:
All right. It will be noted in the record that by stipulation by counsel that the funds shall remain in the registry of the Court until_further orders of this Court. Since the funds shall remain in the registry of the Court, the defendants’ appeal bond will remain as originally set. You gentlemen will protect me with the Supreme Court. And that’s to be noted in the record.”

It thus appears that any judgment this Court would render concerning the disposition of the funds deposited in the registry of the court below is now moot.

For the above reasons, the writ issued herein is recalled.

WRIT RECALLED.


author:
LEMMON, Justice.
      WATSON, Justice,

text:
    STATE of Louisiana v. Ruben DeLaROSE.
    No. 80-K-1377.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Steven A. Hansen, DeCelle & Hansen, Monroe, for Rockwood Ins. Co., applicant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Sam A. Smith, Asst. Dist. Attys., Sedric E. Banks, Banks & Moore, Monroe, for plaintiff-respondent.
   LEMMON, Justice.

This is an appeal by Rockwood Insurance Company from a judgment dismissing its motion to set aside an earlier judgment forfeiting Rockwood’s bail bond that had been furnished to insure defendant’s appearance in court. We hold that the 14-month delay between the motion to forfeit the bond when defendant failed to appear and the entry of judgment forfeiting the bond operated to discharge the surety from its obligations under the bond.

A bill of information was filed in May, 1978, charging defendant with theft. Defendant secured his release from custody by furnishing a $2000 appearance bond executed by Rockwood on June 17, 1978.

Defendant failed to appear for trial on August 14, 1978. The court granted the prosecution’s oral motion to “call him on his bond”. However, the judgment of forfeiture was not rendered until October 15, 1979, after a hearing based upon the introduction of court minutes reflecting defendant’s failure to appear for trial. Notice of the bond forfeiture was mailed to the surety and its agent on October 22, 1979.

R.S. 15:85 A provides in pertinent part:

“A. All bonds taken to secure the appearance of any person before any district court, except at a preliminary examination, shall be forfeited and collected as follows:
“(1) If at the time fixed for appearance such person fails to appear and answer when called, the judge, on motion of the district attorney, upon hearing of proper evidence including service or attempted service upon the defendant and service upon the surety, shall forthwith enter a judgment decreeing the forfeiture of the bond and against such person and his sureties in solido for the full amount thereof. After entering the fact of such failure to appear in the court minutes, the clerk of court shall promptly mail notice of the forfeiture to the surety on the bond whose address is on the face thereof and shall execute an affidavit of the mailing and place it in the record. A copy of the notice also shall be mailed to the agent of the surety who posted the bond. Mailing the notice to the agent alone shall not constitute compliance with this Section. Failure to mail the proper notice within sixty days after the entry of the forfeiture shall release the surety from all obligations under the bond.” (Emphasis supplied).

R.S. 15:85 A clearly requires specific procedures when the district attorney moves for bond forfeiture after a defendant fails to appear at the time fixed for his appearance. The requirement that the judge enter forthwith a judgment decreeing the forfeiture of the bond expresses a legislative intent for immediate action, while the probability of locating the defendant is greater. Furthermore, the entry of judgment triggers the additional requirement of prompt notice of the forfeiture to the surety (and not merely to the agent), emphasizing the legislative scheme for judicial action without delay and for the surety’s prompt receipt of knowledge that the principal did not appear. Indeed, the statute’s provision for release of the surety' from all obligations under the bond, when the surety is not notified of the forfeiture within 60 days of entry, recognizes the substantial prejudice to a surety from delay in learning of a defendant’s failure to appear. Since the underlying purpose of a bond is to insure the appearance of a defendant released on bail, that purpose is disserved when the surety (whose interest in securing the defendant’s appearance is parallel to that of the state) is deprived by unnecessary delays of any reasonable opportunity to locate and surrender the defendant.

In order to obtain a judgment of bond forfeiture against a surety the state must comply strictly with the terms of the statute regulating bond forfeitures. The delay in this case of 14 months between the district attorney’s motion to forfeit the bond and the court’s entry of the judgment decreeing the forfeiture violated the express terms of R.S. 15:85 A and defeated the statutory scheme of “prompt notice” to the surety in order to enhance the possibility that the surety will locate and surrender the defendant. Because of the failure to comply with R.S. 15:85 A the judgment forfeiting the bond must be set aside.

We therefore reverse the judgment of the trial court and enter judgment (1) setting aside the August 15,1979 judgment of bond forfeiture and (2) releasing Rockwood Insurance Company from all obligations under the bond.

REVERSED AND RENDERED.

WATSON, J., concurs and assigns reasons.

WATSON, Justice,

concurring.

I agree with the result reached by the majority, but for a different reason. The record does not reflect that either the defendant or the surety was served with a notice for defendant to appear for trial, as required by LSA-R.S. 15:85. Therefore, all of the proceedings to forfeit the bond are invalid.

I respectfully concur.

      . In State v. Ledener, 253 La. 915, 221 So.2d 47 (1969) this court noted that the statutory requirement of judgment of forfeiture entered forthwith means entry “immediately or without delay”.


text:
    STATE of Louisiana v. Tyronne HUNTER.
    No. 80-K-1443.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David Plavnicky, Asst. Dist. Atty., for plaintiff-relator.
    John J. Dolan, New Orleans, for defendant-respondent.
   WATSON, Justice.

After pleading guilty to two counts of attempted simple burglary, defendant, Ty-ronne Hunter, was placed on three years active probation. One condition of probation was a year in parish prison. The probationary period expired on May 17, 1980. Thirteen days later, on May 30, 1980, the State filed a rule to show cause why probation should not be revoked. At the hearing on June 13, 1980, the trial court granted defendant’s motion to quash the rule. The State sought appellate review and a writ of certiorari was granted.

On August 25, 1978, the Louisiana Department of Corrections sent a letter to the trial court indicating that Tyronne Hunter had been arrested for the currency theft of $100. A second letter stated that Hunter had been convicted of the currency theft but was out on bond pending appeal. The letter added that Hunter had been arrested for burglary and possession of property worth $89, but the District Attorney had refused charges. A subsequent letter, on September 19, 1979, alleged that Hunter had been arrested for murder and resisting arrest on September 12.

In a per curiam opinion, the trial judge stated that copies of these letters had been forwarded to the District Attorney. The judge noted that the letters were received well within the probationary period, but the rule to revoke was not filed until 13 days after defendant’s probation terminated. The rule was quashed as untimely and without sufficient grounds under either LSA-C. Cr.P. art. 900 or 901.

Attached to the State’s writ application is a copy of a letter requesting that proceedings be instituted to revoke Hunter’s probar tion. This letter is dated May 7, 1980, ten days before expiration of the probationary period.

The State contends that, since Hunter’s violations occurred within the probationary period, the letter requesting revocation proceedings was written within that period and the hearing on the rule was only a short time later, the revocation hearing was within a reasonable time.

A defendant’s sentence is satisfied when he completes the period of probation imposed. LSA-C.Cr.P. art. 898. The running of the period of probation is interrupted when a warrant of arrest for violation of conditions issues. LSA-C.Cr.P. art. 899. Here, there was no warrant of arrest during the probationary period. Since the warrant did not issue within that period, the question of whether the State was dilatory in its execution does not arise. Compare State v. Martens, 338 So.2d 95 (La., 1976); State v. Harris, 342 So.2d 179 (La., 1977); and State v. Jones, 285 So.2d 231 (La., 1973). The State cannot issue a valid warrant or summons for revocation after the defendant has satisfied the sentence imposed by completing the probationary period.

For the foregoing reasons, the judgment of the trial court quashing the State’s rule to show cause is affirmed.

AFFIRMED.