author: HERSEY, Judge. ANSTEAD, Judge,

text:
    Jean B. WAGNER, Appellant, v. L. Reginald WAGNER, Appellee.
    No. 79-1373.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.

      Steven A. Hirsch and H. T. Maloney of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for appellant.
    James A. Belcher of Law Offices of James J. Belcher, Pompano Beach, for ap-pellee.
   HERSEY, Judge.

Upon termination of a marriage that spanned nearly twenty years and produced two children, still minors, appellant was awarded $500.00 a month for five years as rehabilitative alimony. She appeals. We reverse that award.

The allowance for child support and provisions pertaining to property interests are within the ambit of reasonable discretion and we do not concern ourselves with those.

Nor do we find the amount of the alimony award such that reasonable men could not differ as to its reasonableness.

We are, however, troubled by, and we therefore address, the legal question of the characterization of the alimony award as rehabilitative.

The record discloses that while the wife has obtained a real estate license and has some slight experience in modeling, neither of those fields offers any promise of a significant yield of income. She is primarily a teacher currently employed at a salary of $12,000.00 per annum with every expectation of modest, periodic, incremental increases. There is no evidence that she ever earned more nor any indication that an expectation of substantial increases would be justified. Under these circumstances there is no “rehabilitation” possible nor “habilitation” to greater financial success reasonably to be anticipated.

The award should have been for permanent alimony. McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977); Kvittem v. Kvittem, 365 So.2d 791 (Fla. 4th DCA 1978).

Application of the correct legal rule is not a matter of discretion; consequently, characterizing the alimony award as rehabilitative is erroneous as a matter of law. Canakaris v. Canakaris, 382 So.2d 1197, 1980 FLW 59 (Fla. Jan. 31, 1980). We reverse on that basis.

We do not detail the financial comparison between the parties as that goes more to the amount than to the character of the alimony award. As indicated previously, the amount of the award, while not so unreasonable as to be an abuse of discretion, was low under the circumstances revealed by the record before us. Since the amount was established in the context of a rehabilitative setting it will necessarily have to be revisited by the trial judge on remand and brought into focus as a permanent, periodic award of alimony, subject to being tested by the standards ample precedent supplies for that purpose.

The judgment appealed from is reversed and the cause remanded for further proceedings in accordance with our holding.

REVERSED AND REMANDED.

BERANEK, J., concurs.

AN STEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I concur in the result announced in the majority opinion, but I do not agree with the majority’s characterization of the amount of the award as “low.”


source: Caselaw Access Project

author: HOBSON, Acting Chief Judge.

license: Public Domain

text:
    James B. ZAMBITO and Aurora S. Zambito, his wife, Appellants, v. SOUTHLAND RECREATION ENTERPRISES, INC., d/b/a Southland Roller Palace; Federal Insurance Company; and Midland Insurance Company, Appellees.
    No. 79-1596.
    District Court of Appeal of Florida, Second District.
    May 28, 1980.
    Julian D. Clarkson, Steven D. Merryday and C. Steven Yerrid of Holland & Knight, Tampa, for appellants.
    Stephen F. Myers of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appel-lees.
   HOBSON, Acting Chief Judge.

James B. and Aurora Zambito, husband and wife, appeal a final order dismissing their third amended complaint with prejudice. We reverse.

Southland Recreation Enterprises, Inc. operates a roller-skating facility which is open to the general public for a specified fee. In August, 1978, Mr. Zambito visited Roller Palace for the first time. An employee of Roller Palace organized a game of “follow the leader” during which each skater closely follows the skater in front of him. The employee led the line of skaters from the designated skating area onto an elevated, carpeted refreshment area. Mr. Zambito and the other skaters followed the employee around the tables and chairs in that area. As the skaters skated by a different route off the elevated area and stepped down six inches to the skating surface, Mr. Zambito fell, suffering a broken leg and other injuries.

The Zambitos’ third amended complaint asserted a cause of action based upon the theories of respondeat superior, premises liability and loss of consortium. Southland filed a motion to dismiss for failure to state a cause of action. In granting the motion to dismiss, the court stated:

Plaintiff must have • known that that which goes up must come down, and consequently at the time of his fall, his knowledge was equal to that of defendant concerning the change in floor elevations. He was equally aware of lighting conditions . ...
Equally known to plaintiff was the danger of falling while roller-skating

The court further stated that it did not consider the doctrine of “assumed risk”, but relied on the decisions in Hall v. Holton, 330 So.2d 81 (Fla. 2d DCA 1976); General Development Corp. v. Doles, 309 So.2d 596 (Fla. 2d DCA 1975), and Jahn v. Tierra Verde City, Inc., 166 So.2d 768 (Fla. 2d DCA 1964).

DISCUSSION

In 1973, tjie supreme court established the doctrine of comparative negligence in Florida and held that a plaintiff was no longer barred from recovery because of his contributory negligence. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Specifically declining to dissect and discuss all possible variations of comparative negligence, the court left it to the lower courts to deal individually with the viability of other defenses based on plaintiff’s negligence.

Implied assumption of risk was the next absolute defense to fall in the case of Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), in which the court held that this defense “merged into the defense of contributory negligence and the principles of comparative negligence . . . apply in all cases where [implied assumption of risk] is asserted.” 348 So.2d at 293.

This court refused to allow the “patent danger” or “open and obvious hazard” doctrine to preclude a manufacturer’s liability in a products liability action. Jones v. Auburn Machine Works Co., 353 So.2d 917 (Fla. 2d DCA 1977), aff’d, Auburn Machine Works Co. v. Jones, 366 So.2d 1167 (Fla.1979). In its affirmance of Judge Ryder’s opinion, the supreme court said, “The patent danger doctrine protects manufacturers who sell negligently designed machines which pose formidable- dangers to their users.”

This brings us to the question of the status of the “patent danger” defense in a landowner/business invitee situation. It has long been the rule that a landowner or occupier owes two duties to an invitee on his. premises: 1) to use ordinary care in keeping the premises in a reasonably safe condition, and 2) to give timely notice of latent or concealed perils which are known or should be known to the owner, but which are not known to the invitee. Waterman v. Graham, 228 So.2d 925 (Fla. 2d DCA 1969).

Although Florida courts have traditionally adhered to the rule that a business invitee’s equal or superior knowledge of a hazard discharges the landowner’s duty to warn, recent decisions have questioned the viability of the patent danger defense in light of Hoffman v. Jones. The Fifth District Court of Appeal recognized the problem in the case of Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980). In that case the plaintiff had actual knowledge of the hazard and the defendant was chargeable with no more than constructive knowledge of the condition. While agreeing with the statement that “a duty to warn does not arise if the invitee has knowledge of the danger equal or superior to that of the occupier,” Judge Cobb noted that “[T]he fallacy is in the premise that the discharge of the occupier’s duty to warn by the plaintiff’s actual knowledge necessarily discharges the duty to maintain the premises in a reasonably safe condition by correcting dangers of which the occupier has actual or constructive knowledge.”

In a landlord/tenant context, the First District Court of Appeal made the outright statement:

Appellees argue that [tenant’s] recovery is barred because of her superior knowledge of the slippery condition of the hallway. We reject this argument for two reasons. First, whether [tenant] had superior knowledge is a question for the jury. Second, [tenant’s] knowledge, if any, would present an issue of comparative negligence and would not bar her recovery. (Emphasis ours)

Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA No. 00-147, filed April 24, 1980). Judge Ervin, in a special concurrence to that opinion, aptly remarked, “This is a murky area of the law and hopefully one which will soon be resolved by the Florida Supreme Court.”

We propose to rectify the “fallacy” in the patent danger defense and clarify the “murky area of the law” by holding that any defense based on invitee’s negligence is no longer a complete bar to recovery in a negligence action, and the doctrine of comparative negligence applies where this defense is raised. This ruling comports with the supreme court’s statement in Hoffman v. Jones that:

A plaintiff is barred from recovering damages for loss or injury caused by the negligence of another only when the plaintiff’s negligence is the sole legal cause of the damage, or the negligence of the plaintiff and some other person or persons other than the defendant or defendants was the sole legal cause of the damage. (Emphasis ours)

280 So.2d at 438.

The effect of our holding on the parties to the instant case is that the Zam-bito complaint is sufficient to state a cause of action against Southland. While Mr. Zambito’s knowledge is a factor to be weighed by the jury against the landowner’s alleged negligence, this factor no longer completely bars the Zambitos’ cause of action.

For the reasons stated, we reverse the dismissal of the third amended complaint and remand this cause to the trial court for further action not inconsistent with this opinion.

REVERSED and REMANDED.

OTT and RYDER, JJ., concur.

      . We have determined that in any event the instant amended complaint is completely sufficient to state a causé of action on the theory of respondeat superior and undoubtedly presents a jury question as to Mr. Zambito’s knowledge of the hazard.


author: ORFINGER, Judge.

text:
    Kenneth Kermit SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 00-166/T1-107.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.

      James B. Gibson, Public Defender, Dayto-na Beach, and Thomas S. Keith, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant contends that condition (11) of his probation which requires him to consent to a search of himself or any vehicle or premises under his control at any time by any law enforcement officer is overbroad and violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution.

The provision is Valid insofar as it permits appellant’s probation supervisors to make these searches, but is not valid insofar as it grants blanket permission for warrantless searches to other law enforcement officers. Grubbs v. State, 373 So.2d 905 (Fla.1979); Wood v. State, 378 So.2d 110 (Fla. 5th DCA 1980).

Condition (11) of the probation order is modified to apply only to probation supervisors, and as modified, the judgment and sentence are

AFFIRMED.

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


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Roy ZIMMER and Mary Zimmer, his wife, Appellants, v. AETNA INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 79-628/T4-453.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.
    James L. Fly, Winter Park, for appellants.

      John W. Bussey, III, Orlando, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants, Roy and Mary Zimmer, appealed a declaratory judgment of the Circuit Court for Orange County interpreting the language of an endorsement entitled Florida Mandatory Endorsement (Sinkhole Collapse Coverage) in a homeowner’s policy issued by appellee, Aetna Insurance Company. The Zimmers made a claim on their policy. Aetna then brought suit for interpretation of the applicability of the endorsement. The Zimmers counterclaimed to recover. The lower court bifurcated the trial and proceeded first to a non-jury determination of coverage afforded by the policy. Disputed issues of fact as to the cause of the Zimmers’ loss, whether any damage occurred within the effective dates of coverage and the amount of such damage, remained to be determined by a later jury trial following an interpretation of the endorsement as affording coverage.

The lower court concluded that the type of loss claimed by the Zimmers was not within the coverage afforded by the Aetna policy. We disagree and reverse.

The Florida Mandatory Endorsement was included in the policy pursuant to section 627.351(2), (3), Florida Statutes (1979), which provides:

Agreements may be made among property insurers with respect to the equitable apportionment among them of insurance which may be afforded applicants who are in good faith entitled to, but who are unable to procure, such insurance through ordinary methods, and such insurers may agree among themselves on the use of reasonable rate modifications for such insurance. Such agreements and rate modifications shall be subject to the applicable provisions of this chapter.
* ******
It is the finding of the legislature that: (a) Due to the lack of windstorm insurance coverage in certain areas, economic growth and development is being deterred or otherwise stifled in said areas, mortgages are in default, and financial institutions are unable to make loans.
(b) Other areas of the state may be similarly affected in the future.

In November, 1969, Rules of the Insurance Commissioner were adopted providing for a pool concept or participation plan whereby insurers were required to provide coverage for insurable sinkhole losses if requested by the landowner. By Rule No. 4-23.07, Florida Administrative Code, the Commissioner defined “sinkhole collapse” as follows:

Direct loss by sinkhole collapse means actual physical damage to the property covered arising out of or caused by sudden settlement or collapse of the earth supporting such property only when such settlement or collapse results from subterranean voids created by the action of water on limestone or similar rock formation.

The wording of the endorsement was almost identical.

Appellants contend that the lower court erred in construing Aetna’s policy as excluding sinkhole loss when the earth supporting their home did not “suddenly” settle or “suddenly” collapse.

Section 627.351(2), Florida Statutes (1979), did not specify that the loss be “sudden” but rather, mandated coverage for insurable sinkhole losses. The word “sudden” first appears in Rule No. 4-23.07, Florida Administrative Code. The rule was intended to carry out the legislative purpose, to cover insurable sinkhole losses, and unless the rule is clearly contradictory, we must urge a construction of the rule which will carry out this legislative purpose. Calio v. Equitable Life Assurance Society of United States, 169 So.2d 502 (Fla. 3d DCA 1964).

Sinkhole losses did not prove to be burdensome to the insurance industry. An order of the Insurance Commissioner dated April 26, 1973, recited that during the first three years of the plan for equitable apportionment of losses between insurers, there had not been a single loss. The order concluded that the administrative costs of the plan were disproportionately excessive in relation to losses incurred or anticipated.

The settlement, or collapse as used in the definition, is limited to those caused by the collapse of subterranean voids created by the action of water on limestone or similar rock formation. The time required for action of water on rock to create a void, when measured in terms of the earth’s age may be a “sudden” process but in terms of a man’s lifetime,.the progress of such process is hardly capable of discernment. Aetna urges a construction which would limit coverage only to those situations where the collapse would occur instantaneously. The term “sudden” as defined in Black’s Law Dictionary 1284 (5th ed. 1979) is:

Happening without previous notice or with very brief notice; coming or occurring unexpectedly; unforeseen; unprepared for.

In the case before us, the damage has been occurring in a continuous, inexorable manner which will lead ultimately to complete destruction of the Zimmers’ house. No statistics were developed at the trial below as to the number of sinkholes which gradually manifest themselves on the earth’s surface and those which “instantaneously” appear when the ceiling over a large void in the subterranean layer, no longer able to support the load above, falls. But for each one of the latter, there must be many wherein the voids are much smaller but nonetheless fall, causing collapse of the overlying earth and damage or destruction of any structure situated thereon. It is especially significant that the Legislature included in addition to the word collapse, the word “settlement.” “Settlement” is defined in Webster’s Third New International Dictionary 2079 (3d ed. 1961) as:

A gradual sinking of a structure, either by the yielding of the ground under the foundation or by the compression of the joints or material.

“Settlement,” by its inclusion in the statute, clearly reflects the legislative purpose not to limit losses to those of a “sudden, overnight nature, the type that amounts to an immediate catastrophe” as contended by Aetna, but also to include those where the loss occurs over a more extended period. The word “sudden” when used in this context would limit claims to those losses which occur unexpectedly, without previous notice and which are unforeseen and unprepared for. To limit the policy to the rare circumstance urged by Aetna would defeat the claimed protection which is behind the purpose of having the insurance policy. Massachusetts Indemnity & Life Ins. Co. v. Schupper, 301 So.2d 789 (Fla. 3d DCA 1974); George v. Stone, 260 So.2d 259 (Fla. 4th DCA 1972). Where there are two interpretations which may be fairly given language in a policy, the one that allows the greater protection for the insured will govern. Financial Fire & Casualty Co. v. Callaham, 199 So.2d 529 (Fla. 2d DCA 1967).

We therefore reverse the judgment of the lower court and hold that the Sinkhole Coverage Endorsement of Aetna’s policy covers those losses occurring because of the settlement or collapse resulting from subterranean voids created by the action of water on limestone or similar rock formations which are unforeseen, occur unexpectedly, without notice and for which the homeowners are unprepared.

We note from the record there was some evidence that the damage to the Zimmers’ home was manifest before the policy was obtained and that sinkhole collapse was not the cause of that damage. Those issues as well as the extent of the Zimmers’ damage were left by the lower court for later determination and as a consequence were not considered in our analysis of the language of the policy.

REVERSED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . This policy insures against direct loss to the property covered caused by: Sinkhole collapse, meaning only actual physical damage to such property arising out of, or caused by sudden settlement or collapse of the earth supporting such property and only when such settlement or collapse results from subterranean voids created by the action of water on limestone or similar rock formations. This policy does not insure against loss caused by abandonment of the property covered. Any provision in this policy which excludes loss by “earth sinking” is amended to exclude loss by “earth sinking other than sinkhole collapse.” All other terms and conditions of this policy remain unchanged.


author: •ORFINGER, Judge.

text:
    Louis C. VERACE, Appellant, v. Dorothy H. VERACE, Appellee.
    No. 79-148.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.
    Price Carter and Harvey C. Poe, Jr., Melbourne, and Larry Klein, West Palm Beach, for appellant.
    Stephannie L. DaCosta and Barbara T. Taylor, Cocoa Beach, for appellee.
   •ORFINGER, Judge.

The husband appeals from a final judgment in a dissolution action, contending that the trial court erred in refusing to award him a special equity in the jointly owned marital home and in a jointly owned certificate of deposit.

With respect to the marital home, the evidence does not reflect an abuse of discretion by the trial court in refusing to recognize a special equity in the husband, but thé evidence clearly reflects that the jointly' held certificate of deposit for $21,100 was purchased by the husband with funds supplied by him from a source clearly unconnected with the marital relationship. Ball v. Ball, 335 So.2d 5 (Fla.1976); Mitchell v. Mitchell, 368 So.2d 628 (Fla. 4th DCA 1979). The trial court erred in not recognizing the husband’s special equity in the wife’s one-half interest in that certificate of deposit.

The judgment appealed from is affirmed in all respects except as it denies to the husband a special equity in the wife’s one-half interest in the $21,100 certificate of deposit, as to which the judgment is .reversed with directions to award to the husband full title to said certificate of deposit.

' AFFIRMED in part and REVERSED in part.

DAUKSCH, C. J., and COBB, J., concur.


author: MARCUS, Justice. DIXON, Justice DENNIS, Justice,

text:
    STATE of Louisiana v. John WILLIAMS.
    No. 63541.
    Supreme Court of Louisiana.
    May 21, 1979.
    Dissenting Opinion May 28, 1980.

      Alton T. Moran, Director, Gail H. Ray, Appellate Counsel, The Office of Public Defender, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 1, 7 and 11. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

   MARCUS, Justice.

John Williams was charged in the same information with two separate counts of armed robbery in violation of La. R.S. 14:64. After trial by jury, he was found guilty as charged on both counts and sentenced to serve seventy-five years at hard labor on each count. The court expressly directed that the sentences be served con-, currently. On appeal, defendant relies on eleven assignments of error for reversal of his convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 2, 3 AND 6

Defendant contends the trial judge erred in denying his motion to examine prospective jurors individually and outside the presence of each other on voir dire and in overruling his objection to the examination of twenty-four jurors at the same time. He argues that his right to full voir dire examination as guaranteed by La.Const. art. 1, § 17 was circumvented by the procedure employed by the trial judge in the selection of the jury (Assignments of Error Nos. 2 and 3). Defendant further contends that, in selecting the panel, the names of prospective jurors were not drawn from the petit jury venire indiscriminately and by lot in open court in violation of La.Code Crim.P. art. 784 (Assignment of Error No. 6).

At the commencement of the selection of the jury on April 12, 1978, twenty-four prospective jurors (members of the jury venire panel No. 2 for April 12,1978) were brought into the courtroom and seated in alphabetical order in the first two rows of the audience section of the courtroom. The trial judge informed the state and defendant that all twenty-four members of the panel would be examined at one time. The prospective jurors were then sworn and examined by the court, the state and the defendant. At the conclusion of the examination, eighteen of the prospective jurors were peremptorily challenged by the state and defendant. None of the jurors were challenged for cause by the state or defendant. The six remaining prospective jurors were duly sworn to serve as jurors in the case and were retired to the jury room to await the selection of the balance of the jury. After a brief recess, fifteen more prospective jurors (members of the jury venire panel No. 4 for April 12, 1978) were called and sworn. After examination, the remaining members of the jury were selected and sworn.

In selecting a petit jury panel, details such as whether the jurors should be called singly or by groups are left to the court’s discretion. The trial court can and should regulate such matters. La.Code Crim.P. art. 784, Official Revision Comment (c). The calling of prospective jurors in groups, rather than singly, and their examination in the presence of each other does not, in the absence of special circumstances, deny a defendant a fair trial. See State v. Hegwood, 345 So.2d 1179 (La.1977).

We find no such “special circumstances” here. Defendant extensively examined the prospective jurors both individually and collectively. In addition, defendant points to nothing particular about this case which might cause answers given by some prospective jurors (or the questions asked them) to prejudice the views of the other prospective jurors in the group. Hence, we do not find that the trial judge abused his discretion in calling the prospective jurors in groups, rather than individually, and in allowing their examination in the presence of each other. Nor do we consider that the trial judge abused his discretion in permitting the examination of twenty-four jurors at the same time.

Next, we consider defendant’s contention that the trial judge failed to select a jury panel indiscriminately and by lot in open court as directed by La.Code Crim.P. art. 784.

In State v. Hoffman, 345 So.2d 1 (La.1977) (on rehearing), this court held that the requirements of La.Code Crim.P. art. 784 were applicable to the criminal district courts in Orleans Parish and La.Code Crim.P. art. 409.1 (authorizing the creation and operation of a central jury pool for the parish’s criminal courts) such that there was error in calling prospective jurors in the order that their names appeared on the jury panel sheet compiled by the jury commission rather than “indiscriminately and by lot in open court” as mandated by article 784.

However, after our decision in Hoffman, La.Code Crim.P. art. 784, was amended by Acts 1977, No. 556, to provide:

In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court.
In those judicial district courts, including the Criminal District Court for the parish of Orleans, wherein use of a jury pool has been authorized by law, the petit jury panel shall be selected by random, indiscriminate choice in a manner to be determined by the rules of the court in which the jury panel is selected, (amendment emphasized)

It is now apparent that those judicial district courts, wherein use of a jury pool has been authorized by law, are exempt from the requirement of the first paragraph of article 784 (i. e., that, in selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court) and are required, instead, to select the petit jury panel by random, indiscriminate choice in a manner to be determined by the rules of the court in which the jury panel is selected. See State v. Hillin, 367 So.2d 282 (La.1978) (per curiam) (unpublished appendix to per curiam). As the effective date of this amendment to article 784 (July 15, 1977) is prior to the date of the offenses charged herein (January 9,1978), it is clear that the amendment applies to the procedures employed by the trial court in the instant case.

Use of a central jury pool has been authorized by law for the Nineteenth Judicial District Court (La.Code Crim.P. art. 409.4) and, pursuant to this statutory authorization, that court has adopted Rule VII, constituting and administering its central jury pool. This rule provides for the random, indiscriminate choice of petit jury panels and, thus, on its face complies with the requirement of article 784 (as amended). In overruling defendant’s objection, the trial judge indicated that the panel had been selected at random under the jury management plan authorized by law for the court. Moreover, defendant does not allege any violation of the procedures established in Rule VII. Accordingly, defendant’s contention that the trial court failed to comply with the requirements of article 784 is without merit.

Assignments of Error Nos. 2, 3 and 6 are without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant contends the trial judge erred in permitting the state, over defense objection, to amend the bill of information on the day of trial (Assignment of Error No. 4). Defendant further contends the trial judge erred in denying his motion for a continuance grounded on the claim that he had been prejudiced in his defense upon the merits as a result of the amendment (Assignment of Error No. 5).

The district attorney filed the bill of information in this case on January 27, 1978. In pertinent part, the information recited that:

on or about the ninth (9th) day of January, 1978, [defendant] committed the offense^) of ARMED ROBBERY (FELONY), violating Louisiana Revised Statutes 14:64, in that [he] robbed Adeline Vurlemont, while armed with a dangerous weapon, to-wit: a knife,
Count I — On or about the ninth (9th) day of January, 1978, [he] violated La.R.S. 14:64 in that [he] robbed Ida Collins, while armed with a dangerous weapon, to-wit: a knife .

On the day of trial, April 12, 1978, after the prospective jurors had been sworn, the state moved to amend the information so that, in pertinent part, it would read as follows:

on or about the ninth (9th) day of January, 1978, [defendant] committed the offense(s) of ARMED ROBBERY (FELONY)
Count I — On or about the 9th day of January, 1978, [he] violated Louisiana Revised Statutes 14:64, in that [he] robbed Adeline Vurlemont, while armed with a dangerous weapon, to-wit: a knife,
Count II — On or about the ninth (9th) day of January, 1978, [he] violated La. R.S. 14:64 in that [he] robbed Ida Collins, while armed with a dangerous weapon, to-wit: a knife ....

Defendant objected to the amendment, arguing that it added a second charge of armed robbery to the information. The trial judge overruled the objection (Assignment of Error No. 4). Immediately thereafter, defendant moved for a continuance, alleging that he had been prejudiced in his defense upon the merits as a result of the amendment. The trial judge denied the motion for a continuance (Assignment of Error No. 5).

Article 487 of the Code of Criminal Procedure states that the court may cause an indictment to be amended at any time with respect to a defect of form — i. e., “any defect or imperfection in, or omission of, any manner of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein.” . Cf. State v. Drew, 360 So.2d 500 (La.1978). On the other hand, an amendment to an indictment which relates to a defect of substance is properly allowed only before trial begins. La.Code Crim.P. art. 487; State v. Lovett, 359 So.2d 163 (La.1978); State v. Bluain, 315 So.2d 749 (La.1975). A jury trial commences when the first prospective juror is called for examination. La.Code Crim.P. art. 761; see also id. art. 786.

It is clear that the information filed by the state charged defendant with two distinct offenses: the armed robbery of Adeline Vurlemont and the armed robbery pf Ida Collins. However, the information inadvertently placed the figure “Count I” before the second charge of armed robbery (/. e., of Ida Collins) and did not signify any “count” before the first charge of armed robbery (/. e., of Adeline Vurlemont). As such, the amendment offered by the state related merely to a defect of form — i. e., correcting a “miswriting” and an “omission” in the information.' Accordingly, assuming, without deciding, that the jury trial had commenced when the state moved to amend the information, this amendment (relating only to a defect of form) was properly allowed by the trial judge.

Finding that the trial judge properly allowed the state to amend the information, we must next consider whether the judge erred in denying defendant’s motion for a continuance.

Under article 489 <$f the Code of Criminal Procedure, the court shall grant a continuance on motion of the defendant if the defendant has been prejudiced in his. defense on the merits by the amendment of the indictment. It is incumbent upon the defendant to show in what respect his defense has been prejudiced by amendment of the indictment. State v. de la Beckwith, 344 So.2d 360 (La.1977).

In his motion for a continuance, defendant argued that the effect of the amendment was to add a second count of armed robbery to the information and he was prepared to defend against only one count of armed robbery. It is, however, apparent that defendant was fully aware that he was being charged with two separate counts of armed robbery. On February 10, 1978, defendant was formally arraigned on two counts of armed robbery and entered pleas of not guilty on both counts. In his motion for a preliminary examination, filed on February 13, 1978, defendant acknowledged that he had been charged with two counts of armed robbery. Moreover, on the day of trial (prior to objecting to the state’s amendment) defendant withdrew his previous pleas of not guilty and entered pleas of “not guilty and not guilty by reason of insanity” as to each of the two counts of armed robbery.

The purpose of the continuance when an amendment to the. indictment is made is to protect the defendant from surprise and prejudice which may result from such an amendment. La.Code Crim.P. art. 489, Official Revision Comment (a). Under the circumstances here presented, we do not find that defendant was surprised, nor his defense prejudiced, by the amendment. Accordingly, the trial judge did not err in denying the motion for a continuance.

Assignments of Error Nos. 4 and 5 are without merit.

ASSIGNMENTS OF ERROR NOS. 8 AND 9

Defendant contends the trial judge erred in denying his motion for a mistrial on the ground that testimony by a state’s witness and a remark made by the district attorney referred to inadmissible evidence of another crime and in failing to admonish the jury to disregard such references.

At trial, the state established that two armed robberies had occurred approximately one mile apart in East Baton Rouge Parish on January 9,1978, between approximately 11:00 a. m. and 12:30 p. m. A witness to the first armed robbery, Mrs. Vic Angelí, and the victim of the second armed robbery, Ida Mae Collins, made in-court identifications of defendant as the individual who committed the robberies.

Thereafter, Bob Tycer, the arresting officer, was called as a state witness. On direct examination, he stated that he arrested defendant in Franklinton (Washington Parish), Louisiana on January 9, 1978. Although aware of the two armed robberies, Tycer indicated that, when he left for Franklinton at 1:00 p. m. on January 9, 1978, he had no knowledge of defendant’s involvement in the robberies. In response to questions from the district attorney, Ty-cer stated that he was “looking for John Williams prior to any armed robberies” and that, when defendant was arrested, he and a deputy from Washington Parish “booked him as a fugitive from Baton Rouge.” During cross-examination, the following colloquy occurred:

Defense Counsel: You did say, Captain Tycer, that at the time you arrested Mr. Williams you were not arresting him for any armed robberies. Is that correct?
Tycer: That was not the reason that I had arrested him.
Defense Counsel: I have no further questions of this witness.
District Attorney: I think the jury ought to know why he was arrested. I withdraw that.

The trial judge immediately instructed both defense counsel and the district attorney not to make any further comments. He removed the jury from the courtroom and admonished the jurors not to consider as evidence in the case any comments made by the district attorney or defense counsel.

After the jury was removed, defendant moved for a mistrial, arguing that the district attorney’s reference to defendant’s arrest related to inadmissible evidence of another crime. The trial judge denied the motion. Defendant thereafter requested the trial judge to admonish the jurors to disregard the district attorney’s comment and Tycer’s testimony relating to defendant’s arrest. The trial judge, having already admonished the jurors, denied the request.

A direct or indirect reference to another crime committed or alleged to have been committed by defendant, as to which evidence would not be admissible, made within the hearing of the jury by the judge, district attorney or a court official, during trial or in argument, would require a mistrial on motion of defendant. La.Code Crim.P. art. 770(2). Additionally, upon request of defendant, the court shall promptly admonish the jury to disregard a remark or comment made during trial, or in argument, within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the' defendant in the mind of the jury when such remark or comment is made by a witness, regardless of whether the remark or comment is within the scope of article 770. La.Code Crim.P. art. 771(2). In such cases, on motion of defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial. Id. art. 771. However, it is well settled that a defendant’s failure to timely raise a contemporaneous objection (La.Code Crim.P. art. 841), move for a mistrial, or request an admonition is a waiver of any such error. See State v. Bernard, 358 So.2d 1268 (La.1978); State v. Hamilton, 356 So.2d 1360 (La.1978); State v. Mouton, 327 So.2d 413 (La.1976).

As noted by the trial judge in denying defendant’s motion for a mistrial and request for an admonition, defendant had, prior to the commission of the armed robberies, escaped from parish jail and apparently his arrest by Tycer was related to this escape, rather, than the robberies. However, assuming, without deciding, that Ty-cer’s testimony and the district attorney’s remark referred to inadmissible evidence of another crime, we find any such error was waived by defendant’s failure to timely move for a mistrial, request an admonition, or enter a contemporaneous objection.

During Tycer’s direct examination by the state, his testimony clearly exposed the jury to the fact that defendant was arrested in Franklinton for reasons entirely unrelated to the robberies. Defendant failed to make any effort to prevent such testimony. In fact, it was defense counsel who, during his cross-examination of Tycer, reinforced in the jurors’ minds the fact that Tycer arrested defendant for a crime other than the armed robberies. Moreover, during voir dire, defense counsel specifically asked several prospective jurors if they had been exposed to any publicity relating to “someone walking out of Parish Prison and then later being arrested for two armed robberies.”

Hence, we do not find that the trial judge erred in denying defendant’s motion for a mistrial and request for an admonition.

Assignments of Error Nos. 8 and 9 are without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends the trial judge erred in allowing his confession in evidence. He argues that the confession was not freely and voluntarily made by him.

During trial, outside the presence of the jury, a hearing was conducted to permit the state to lay a foundation for introduction of defendant’s confession in evidence. Sgt. David L. Cambre, a member of the Baton Rouge police department, testified that defendant was arrested and transported to the parish jail in the early morning hours of January 10, 1978. Shortly thereafter, he and Lt. Robert Gill brought defendant to the detective office to question him. Defendant was advised of his Miranda rights; however, he refused to sign a waiver of rights form or answer any questions. Defendant was returned to jail. Cambre testified that defendant was next questioned on January 12, 1978. Again, he and Lt. Gill brought defendant from the parish jail to an interview room where defendant was advised of his Miranda rights. Defendant, at this time, signed a waiver of rights form, acknowledging his understanding thereof, and indicated that he wished to cooperate and discuss the robberies with the officers. Defendant then gave the officers a confession as to his involvement in the robberies which was written word for word by Sgt. Cambre as defendant dictated to him. At the conclusion, Sgt. Cambre reviewed the statement with defendant to assure that he understood it and that it accurately reflected his statements. Defendant advised Sgt. Cambre that he understood it and, in fact, initialed a correction on the statement. Thereafter, defendant signed the statement in the presence of Officers Cambre and Gill. Officer Cambre testified that he and Lt. Gill were present throughout both interviews with defendant. He emphatically maintained that neither he nor Lt. Gill ever threatened, coerced or physically abused defendant or promised him anything to induce his confession.

Defendant’s testimony was contrary to the testimony of the police officer. He stated that, when Officers Cambre and Gill brought him back to the parish jail after the first interview on January 10, both officers slapped and kicked him. During the second interview on January 12, defendant maintained that Lt. Gill informed him that he would not receive more than a twenty-five year sentence on any charge and promised him that he would not even go to trial if he signed a prepared confession; defendant also stated that Sgt. Cambre implied that he had “pull” with the district attorney’s office in an effort to induce him to sign the confession. Defendant testified that the signatures appearing on the waiver of rights form and confession were not his and maintained that he had not signed anything during either interview with the officers.

At the conclusion of the hearing, the trial judge, finding that the confession was freely and voluntarily made by defendant after having been advised of his Miranda rights, ruled that the confession was admissible in evidence.

Before a confession may be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, inducements or promises. La. R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Matthews, 354 So.2d 552 (La.1978); State v. Lewis, 353 So.2d 703 (La.1977); State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977).

In the instant case, defendant’s allegations that he was promised leniency on pending charges if he confessed to the crimes and that he was physically abused are uncorroborated and were specifically denied by Sgt. Cambre who was present continuously during both interviews with defendant. As to defendant’s claim that the signatures appearing on the waiver of rights form and confession were not his, the trial judge, after comparison of those signatures with in-court signatures made by defendant, concluded that defendant had, in fact, signed the waiver of rights form and confession.

After reviewing the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the confession was freely and voluntarily made after defendant had been advised of his Miranda rights. Accordingly, the trial judge did not err in admitting the confession in evidence.

Assignment of Error No. 10 is without merit.

DECREE

For the reasons assigned, the convictions and sentences are affirmed.

CALOGERO, J., dissents.

DIXON and DENNIS, JJ., dissent and assign reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

The objection here is that the petit jury was not selected “indiscriminately and by lot'in open court . . .” as provided for by C.Cr.P. 784.

The 1977 amendment to C.Cr.P. 784 provided that, where a jury pool is used, the indiscriminate and random selection of the petit jury may be made in a manner to be determined by rules of court.

Rule 7 of the Nineteenth Judicial District Court covers selection procedure from the central jury pool. Section 2.2 of Rule 7 provides: “The petit jury shall be selected in accordance with law from the jury pool panels.”

Rule 7 provides in Section 1.2 that the central jury pool shall consist of persons “randomly selected from the general ve-nire” and divided into jury pool panels of twelve persons, which shall be called “primary jury pool panels.” In lieu of “primary jury pool panels,” in certain cases, “twelve-person jury pool panels are to be selected at random” from the central jury pool (Section 2.1(B)).

It is apparent that the “primary jury pool panels” and the “twelve-person' jury pool panels” are not the same as the “panel” found in C.Cr.P. 784. That panel is drawn from the “petit jury venire,” and must be drawn indiscriminately and by lot in open court. It is apparent that the “primary jury pool panels” (where the central jury pool is used) take the place of the “petit jury venire” under the codal scheme (in districts not using the central jury pool).

Therefore, the rules of the Nineteenth Judicial District Court have not done away with drawing petit jury panels “indiscriminately and by lot in open court.” To the contrary, the rules of court provide that the petit jury shall be selected in accordance with law from the jury pool panels — that is, indiscriminately and by lot in open court.

DENNIS, Justice,

dissenting.

I respectfully dissent for the reasons assigned by Chief Justice Dixon.

      . The Nineteenth Judicial District Court central jury pool is composed of not less than forty-eight persons randomly selected from the general venire and initially divided into “primary jury pool panels” of twelve persons. Rule 7, §§ 1.2, 1.3. Where a trial jury is to be composed of twelve jurors, the trial court shall be assigned a minimum of two primary jury pool panels. Id.,§ 2.1(A). If sufficient primary jury pool panels do not remain intact upon initiation of a trial, the court may be assigned twelve person jury pool panels selected at random from persons within the central jury pool in lieu of primary jury pool panels. Id., § 2.1(B). If the need arises, the court may request additional persons from the central jury pool. These additional persons may be provided in primary jury pool panels or in jury pool panels of not less than five selected at random from the central jury pool. Id., § 2.1(C).

      . In brief, defendant contends the trial judge erred in basing his determination that the confession was free and voluntary on evidence that the trial judge had considered in a previous trial involving defendant. However, as we find that the evidence introduced at the hearing in this case fully supports the trial judge’s conclusion as to the voluntariness of defendant’s confession for the purpose of admissibility, we need not consider this contention.


author:
WATSON, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. William DAVIS.
    No. 65854.
    Supreme Court of Louisiana.
    April 7, 1980.
    Dissenting Opinion May 23, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Robert Glass, Bernard A. Horton, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant William Davis was charged by bill of information with unlawful possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1. He entered a plea of guilty, reserving his right to appeal from denial of a motion to suppress. State v. Crosby, 338 So.2d 584 (La., 1976).

The only issue on appeal relates to defendant’s motion to suppress the revolver which was seized without a warrant at the time of his arrest.

On January 4, 1978, New Orleans Police Officer Jose Quiroz and his partner received a complaint from a radio dispatcher. An anonymous caller had reported that a person at Duke’s Lounge was holding a concealed weapon. The subject was described as a black male, five feet, ten inches in height, weighing about 150 pounds; he was wearing a black hat, a white T-shirt, blue jeans, and a reddish-brown coat. He was reportedly seated near the end of the bar.

Officer. Quiroz and his partner proceeded to the location and observed an individual seated at one end of the bar, who fit the reported description in every detail. As the officers approached the suspect, they noticed a brown paper bag in front of him. When the suspect saw them, he grabbed for the sack, but the officers seized it first and told defendant he was under arrest. A .38 caliber revolver containing four live bullets was found inside the bag.

The information provided by the unidentified caller, combined with independent police corroboration, provided reasonable cause for the officers to investigate the report of a weapon by approaching the defendant. State v. Bolden, 380 So.2d 40 (La., 1980); State v. Jernigan, 377 So.2d 1222 (La., 1979), and authorities cited therein. When the suspect responded to their approach by reaching for the bag, a dangerous situation was presented. Prompt police action was justified to generally protect the public safety and specifically prevent harm to those in the barroom. Under these circumstances, the police action was not unreasonable. The trial judge did not err in denying the motion to suppress.

AFFIRMED.

CALOGERO, J., dissents.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent for reasons given in my dissents in State v. Bolden, 380 So.2d 40 (La., 1980) No. 65,385, and State v. Jernigan, 377 So.2d 1222 (La., 1979).

       Honorable EDWARD A. de la HOUSSAYE, III, Ad Hoc. participated in this decision as Associate Justice


author:
MARCUS, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Richard J. PEOPLES.
    No. 66091.
    Supreme Court of Louisiana.
    April 7, 1980.

      Jeanette G. Garrett, Caddo Parish Indigent Defender, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouehe, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Richard J. Peoples was charged by bill of information with having committed the crimes of theft and receiving stolen things in excess of five hundred dollars on June 18, 1974, in violation of La.R.S. 14:67 and 14:69. After trial by jury on June 21-22, 1976, defendant was found guilty of receiving stolen things in excess of five hundred dollars in value. Subsequently, defendant was sentenced as a second offender to serve seven and one-half years at hard labor. On appeal, defendant relies on nine assignments of error for reversal of his conviction and sentence. Finding reversible error in one of the assigned errors, we need not consider the others.

Defendant contends in Assignment of Error No. 9 that the state presented no evidence of an essential element of the crime charged. This court has consistently held that in a jury trial the proper procedural vehicle for preserving such an issue for appellate review is a motion for a new trial. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Williams, 354 So.2d 152 (La.1977); State v. Cobbs, 350 So.2d 168 (La.1977); State v. Blackstone, 347 So.2d 193 (La.1977). The instant case was tried before a jury and the record does not reveal that defendant filed a motion for a new trial. Hence, in accordance with our previous jurisprudence, the claim that the state presented no evidence of an essential element of the crime charged would not be properly before this court for review.

However, on further consideration, we conclude that it would be patently unfair and a substantial denial of due process to deny a defendant the right to obtain review by this court of a conviction where it is claimed that the state failed to present any evidence of the crime charged or an essential element thereof simply because he did not file a motion for a new trial or filed such a motion and neglected to assert this contention therein. Hence, whether or not a defendant raises a claim of no evidence in a motion for a new trial, upon formal assignment of error, we will review whether the defendant’s claim of no evidence has merit.

Defendant contends the state presented no evidence that the stolen items had a value in excess of five hundred dollars that would support the jury’s finding that defendant was guilty of receiving stolen things valued in excess of five hundred dollars. La.R.S. 14:69 provides:

Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
Whoever commits the crime of receiving stolen things, when the value of the things is five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
When the value of the stolen things amounts to one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of receiving stolen things two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than one thousand dollars, or both.
When the offender has committed the crime of receiving stolen things by a number of distinct acts, the aggregate of the amount of the things so received shall determine the grade of the offense.

This contention is significant because the above statute provides increased penalties for receiving stolen things at more than certain amounts. The state must prove the value of the stolen things received because upon this proof depends the determination of the severity of the offense and the punishment for the convicted offender.

.The record reveals that the stolen property .which defendant was found guilty of receiving consisted of a copying machine purchased in 1967 for $85, two adding machines purchased in 1972 for $316.80 and an electric typewriter purchased in 1968 for $160. The total cost of these items, ranging in age from two to seven years at the time of the crime, was $561.80. In addition to evidence of the original cost of these items, an employee from the office in which the theft took place testified that it would cost $969 to replace the stolen items with similar new equipment. The same witness admitted that he had no knowledge of the value of the equipment at the time of the theft. The state did not introduce in evidence the stolen items or photographs thereof. Rather, the state produced only a receipt signed by the police and the property owner detailing the items of stolen property. Hence, the jury had no opportunity to view the condition of the office machines, ordinarily depreciable assets, in determining their value. On the other hand, defendant offered the testimony of a witness who was accepted by the court as an expert in the field of selling, reconditioning and repairing used office equipment. He stated that the stolen items could be valued at anywhere from $220 to $400.

After reviewing the record, we conclude that, while the state offered evidence of the original purchase price of the stolen items, ranging in age from two to seven years at the time of the crime, and the replacement cost of similar new equipment, it offered no evidence tending to prove that the items had a value of more than $500 at the time of the offense. On the contrary, the only evidence in the récord as to the value of the items at the time of the offense was between $220 and $400. Hence, we find no evidence to support defendant’s conviction of receiving stolen things valued in excess of five hundred dollars. We must reverse.

The United States Supreme Court in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), held that the double jeopardy clause of the fifth amendment precludes a second trial once a reviewing court has found no evidence of the crime charged or an essential element thereof. In addition, the Court stated that the only just remedy for the reviewing court is the direction of a judgment of acquittal. Because we find no evidence in the record of the crime charged, we must enter a judgment of acquittal. State v. Bowen, 376 So.2d 147 (La.1979); State v. Thompson, 366 So.2d 1291 (La.1978); State v. Liggett, 363 So.2d 1184 (La.1978).

DECREE

For the reasons assigned, defendant’s conviction and sentence are annulled and set aside and a judgment of acquittal is entered.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I agree that a defendant’s failure to move for a new trial should not prevent our review of his assignment of error contending that there was no evidence of the crime charged or an essential element thereof. It should be noted, however, that our holding today does not establish a new rule. This Court has repeatedly held that although insufficiency of evidence is not a question of law and may not be reviewed, a total lack of evidence is a question of law and may be considered by us, provided that an assignment of error (formerly a bill of exception) properly perfected presents all the evidence so that we may determine whether there is a total lack of evidence to prove a crime or an essential element thereof. State v. Douglas, 278 So.2d 485 (La.1973); State v. Hochenedel, 253 La. 263, 217 So.2d 392 (1968); State v. McLean, 216 La. 670, 44 So.2d 698 (1950); State v. Drew, 202 La. 8, 11 So.2d 12 (1942); State v. Singley, 195 La. 519, 197 So. 218 (1940). Even though imperfect expressions of the rule have appeared in some of our opinions, in actual practice this Court has not departed from this rationale.

       The Honorable Edward A. de la Houssaye III participated in this decision as an Associate Justice Ad Hoc.


author:
DIXON, Chief Justice.
     PER CURIAM.

text:
    STATE of Louisiana v. Amos BANKS.
    No. 65531.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 30, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
    George M. Strickler, Jr., Supervising Atty., New Orleans, Kenneth C. McBroom, Student Counsel Appellate Advocacy Program, Tulane University School of Law, Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

On March 31, 1978 the defendant was charged with armed robbery in violation of R.S. 14:64. On April 5, 1978, before Judge Andrew G. Búcaro, defendant entered "a plea of guilty as charged and was sentenced to five years at hard labor. Two days later, before Judge Matthew S. Braniff, defendant was allowed to withdraw his plea of guilty. Judge Braniff ordered the sentence imposed by Judge Búcaro to be vacated, recalled and set aside. On April 14, 1978 the defendant entered a plea of not guilty and subsequently the case proceeded to trial. After a jury trial, Judge Braniff presiding, he was found guilty as charged on December 1, 1978 and sentenced to sixty years at hard labor. Defendant appeals his conviction and sentence, relying on nine assignments of error. Because we find an error patent on inspection of the pleadings we deem it unnecessary to discuss these assignments.

The minutes of the court found in the record indicate that Judge Braniff allowed the defendant to withdraw his plea of guilty after Judge Búcaro had accepted the plea and sentenced the defendant to five years at hard labor. The minutes show that Judge Búcaro explained to the defendant his constitutional rights and fully questioned him relative to his plea of guilty. The court found that there was a basis in fact for the plea of guilty and, further, that the plea was voluntarily and intelligently entered. Therefore, the defendant’s plea of guilty was properly accepted by Judge Bu-caro.

A trial judge may permit a plea of guilty to be withdrawn at any time before sentence. State v. DeManuel, 321 So.2d 506 (La.1975); C.Cr.P. 559. But the exercise of this judicial discretion is only allowed before sentence is imposed. In DeManuel this court held that the trial court lacked the authority to permit the defendant to withdraw his guilty plea after sentence had been imposed. In that case the defendant pleaded guilty and was sentenced; after he was informed that he would be charged as a multiple offender, the trial judge allowed defendant to withdraw his plea of guilty, and the plea and sentence were set aside. Subsequently, the defendant pleaded guilty a second time and was sentenced. He later filed a motion to withdraw his guilty plea and the motion was denied. On appeal, this court held that because C.Cr.P. 559 permits the withdrawal of a guilty plea only before sentencing, the ruling of the trial judge permitting the withdrawal of the first plea was invalid. The court ordered that the plea and sentence be set aside because of the error patent on the face of the record, which revealed two sentences imposed on the same charge.

Therefore, it is necessary to conclude that the ruling of Judge Braniff permitting defendant to withdraw his guilty plea after .sentence was imposed by Judge Búcaro was improper. For the same reason the decree setting aside the sentence was also without effect. The conviction and sentence resulting from the plea of guilty are therefore in full force and effect.

The case of State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977), is not.to the contrary. Clark pleaded guilty to armed robbery and was sentenced to five years. Clark later learned that the state planned to enhance his sentence as a multiple offender. On motion of the defendant, which we treated as a habeas corpus post-conviction remedy, the trial court found that the multiple billing violated a plea bargain the state had made with Clark, and set aside the guilty plea and sentence. Clark was later tried by jury, convicted and sentenced to thirty-three years. He then attacked that sentence.

We approved the procedure followed by the trial court, holding that the district court had the jurisdiction, power (and duty) to set aside a plea and sentence in post-conviction remedy cases when the sentence and plea were constitutionally infirm. To the extent, only, that State v. DeManuel was inconsistent, it was overruled. State v. DeManuel, supra, is still authority for the proposition that, except when a constitutionally infirm sentence is involved, the defendant cannot withdraw his plea of guilty after sentence is imposed.

For the reasons assigned, the conviction is affirmed; the sixty year sentence imposed after trial is vacated and the guilty plea and sentence of five years at hard labor are reinstated.

ON APPLICATION FOR REHEARING

PER CURIAM.

Filed by the State with an application for rehearing is a per curiam by Judge Braniff, the trial judge. He points out that it was Judge Búcaro, not Braniff, who permitted defendant to withdraw his plea of guilty two days after he was sentenced to five years — a matter not disclosed by the record in this court. The brief transcript attached to the per curiam only states:

“BY THE COURT:
In this matter, the court will set aside the guilty plea, and permit the defendant to be rearraigned at a later date, and vacate the sentence that was imposed, based upon the fact that the defendant himself is making this request. He has stated that he entered the plea of guilty, and did not know what he was doing.
BY MR. JOHN BLANCHARD:
Fine, Your Honor.”

There is no motion to set aside the plea and sentence. Except for the statement by the judge that the defendant “did not know what he was doing,” in spite of the finding two days earlier that the plea of guilty was voluntarily and intelligently entered, there is no suggestion of any infirmity in the guilty plea which would justify setting aside the plea and sentence of April 5.

The rehearing is denied.

       Chief Judge Paul B. Landry, Retired, participated in this decision as an Associate Justice Ad Hoc:

      . The record is silent as to the reason defendant Banks was permitted to withdraw his guilty plea. In spite of our requests to the district •court, it has not been supplied.


author: DENNIS, Justice. DIXON, Chief Justice

text:
    Mrs. Lillian Schon SMALL v. William J. GUSTE, etc., et al.
    No. 65363.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied June 2, 1980.

      William J. Guste, Jr., Atty. Gen., Kendall L. Vick and Donald Ensenat, Asst. Attys. Gen., Dept, of Justice, New Orleans, for defendant-applicant.
    Glenn L. Morgan, New Orleans, for plaintiff-respondent.
    Richard E. Gerard, Chairman, Lake Charles, Eugene J. Murret, Chief Executive Officer, New Orleans, The Judiciary Commission of Louisiana amicus curiae.
    Richard H. Gauthier, President, Thomas C. Wicker, Jr., Vice President, James E. Clark, Secretary, Frank A. Marullo, Jr., Treasurer, Edwin R. Hughes, Jena, Lemmie 0. Hightower, Monroe, Guy E. Humphries, Jr., Alexandria, Edward N. Engolio, Plaquemine, Charles W. Roberts, Baton Rouge, Stephen A. Duczer, Thomas W. Tanner, Slidell, Joseph A. LaHaye, Opelousas, Richard J. Garvey, New Orleans, Richard B. Williams, Natchitoches, James H. Drury, New Orleans, amicus curiae on behalf of the Louisiana District Judges Association.
   DENNIS, Justice.

In this review of a mandamus ordering the attorney general and the Orleans Parish district attorney to bring an action to remove a district judge from office under the intrusion into office statute we are called upon to decide whether the exclusive method by which a judge may be removed is by exercise of this Court’s original jurisdiction on recommendation of the judiciary commission. We concludé that this Court, on recommendation of the judiciary commission, has exclusive original jurisdiction to remove a judge from office. The power to remove a judge from office, which was vested exclusively within the original jurisdiction of this Court by the 1921 constitution, has not been diminished or reallocated. By an amendment to the constitution in 1968 the recommendation of the judiciary commission, in lieu of suit, was adopted as the sole method of invoking this Court’s exclusive original jurisdiction to remove a judge from office. This Court’s exclusive original jurisdiction to remove a judge on recommendation of the judiciary commission was continued without modification by the 1974 constitution. Accordingly, the district court erred in issuing mandamus ordering that a suit be brought against a judge for his removal in district court. The judgments of the district court and the court of appeal are vacated and annulled.

Plaintiff, Mrs. Lillian Schon Small, filed suit for mandamus ordering the governor, the attorney general and the district attorney of Orleans Parish to file suit against Judge S. Sanford Levy under the intrusion into office act to remove him from office. The district court sustained an exception of no cause of action filed by the governor but rejected similar exceptions filed by the district attorney and the attorney general. After an appeal, the court of appeal affirmed, holding that this Court’s exclusive original jurisdiction to remove a judge from office' is restricted to removal grounded on misconduct rather than “disqualification due to age.” We granted writs to determine whether the intermediate court too narrowly construed this Court’s exclusive original jurisdiction to remove judges from office and the nature of the grounds therefor.

The issues presented are (1) whether a judge may be removed from office by any judicial method other than through exercise of this Court’s exclusive original jurisdiction on recommendation of the judiciary commission; and (2) whether a judge’s willful retention of office beyond his mandatory retirement age is grounds for removal by this method.

1. A judge may be removed solely by exercise of this Court’s exclusive original jurisdiction on Judiciary Commission recommendation.

The 1921 constitution originally provided that this Court “has exclusive original jurisdiction of . suits for the removal from office of judges of courts of record as elsewhere provided by this Constitution,” La.Const.1921, Art. 7, § 10. It also initially provided that this Court’s exclusive original jurisdiction for such purposes should be invoked by a suit initiated by the attorney general or a district attorney. La.Const.1921, Art. 9, § 5. Accord-, ingly, the short answer to the issues raised by this case seems to be that the intrusion into "office act, insofar as it purported to authorize removal suits against judges in any court other than this Court, was impliedly repealed or modified by the 1921 constitution.

Later constitutional provisions have not diminished or reallocated this Court’s exclusive original jurisdiction to remove a judge from office. In 1968 the 1921 constitution was amended to repeal Article 9, § 5, which had formerly authorized suits for the removal of judges in this Court by the attorney general and district attorneys and to establish in lieu thereof another method for invoking this Court’s exclusive original jurisdiction to remove judges from office. In place of removal by suit, the amendment established a method for removal by this Court based on the recommendation of the judiciary commission. The wording of the joint resolution, the official ballot presented to the voters, and the substance of the amendment indicates that neither the legislature nor the people intended to diminish or alter this Court’s exclusive original jurisdiction to remove a judge from office; rather, they clearly intended merely to abolish the grounds and procedures for removal of judges by suit and to substitute a new method for invoking that same judicial power.

The 1974 constitution maintains this Court’s exclusive original jurisdiction to remove judges from office and continues the judiciary commission recommendation as the sole procedure for invoking this judicial power. La.Const.1974, Art. 5, § 25. Although the brief 1974 charter does not expressly describe this jurisdiction as “exclusive,” the continued system of removal by this Court acting as the original court on recommendation of the judiciary commission, and the absence of any other judicial method of removal, clearly implies that the constitution vests this power only in this Court. Moreover, the convention debates confirm that this was the intention of the delegates.

2. A judge’s willful retention of office beyond his mandatory retirement age is grounds for removal by this Court.

This Court may remove from office a judge for “willful misconduct relating to his official duty, willful and persistent failure to perform his duty, [or] persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” La.Const.1974, Art. 5, § 25. The constitution clearly provides that a judge shall not remain in office beyond his mandatory retirement age. La. Const.1974, Art. 5, § 23; La.Const. 1921, Art. 7, § 8. The constitution provides that a judge, as every public official, shall take an oath to support the constitution and laws of this state and to faithfully and impartially discharge and perform all the duties incumbent upon him as a judge. La.Const.1974, Art. 10, § 30. The Code of Judicial Conduct provides that “[a] judge should respect and comply with the law” and “be faithful to the law.” Canons 2 and 3.

We think it clear that a judge who willfully refuses to perform his constitutional and ethical duty to retire upon reaching mandatory retirement age is guilty of .“willful misconduct relating to his official duty,” and, if continued, “willful and persistent failure to perform his duty.” Furthermore, if his misconduct is publicized he may be guilty of “persistent and public conduct prejudicial to the administration of justice.” Accordingly, we conclude that a judge may be removed from office by this Court on recommendation of the judiciary commission for his failure to retire timely upon reaching his mandatory retirement age.

3. Other issues raised by plaintiff are without merit.

The plaintiff’s contention that she has stated a cause of action for judgment declaring that Judge Levy’s office was vacated by law • when he allegedly reached mandatory age is without merit. We find no constitutional or statutory provision to this effect. On the contrary, a vacancy, as used in the constitution, occurs “in the event of death, resignation, removal by any means, or failure to take office for any reason.” La.Const.1974, Art. 10, § 28. Furthermore, the legislature has provided that every public officer in this state except in case of impeachment or suspension, shall continue to discharge the duties of his office until his successor is inducted into office. La.R.S. 42:2; see also State v. Cage, 196 La. 341, 199 So. 209 (1940).

Conclusion

Since a district court lacks jurisdiction to decide a case involving the removal of a judge, the judgments below ordering the attorney general and the Orleans Parish district attorney to bring actions in district court to remove Judge Levy must be reversed and set aside. The plaintiff may file her complaint, however, with the judiciary commission. Due to the delays which have occurred in having the proper forum consider the merits of this matter it would be appropriate and desirable for the commission to consider the complaint, if filed, with dispatch.

REVERSED.

DIXON, C. J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent from the opinion of the majority.

It seems to me an unwarranted assumption that this court can exercise its inherent powers to remove a judge from office only upon the recommendation of the Judiciary Commission, particularly where, as here, the office appears to be vacant.

Article 7, § 8 of the Louisiana Constitution of 1921, as amended in 1956 and 1960, provides:

“(f) Retirement of a judge shall become effective:
(1) Where compulsory, when he reaches the age of 75 years.
(g) The retirement of a judge creates a vacancy in the office which shall be filled in the manner prescribed by law.”

Article 14, § 16 of the Louisiana Constitution of 1974 continued as a statute Article 7, § 8 of the Constitution of 1921. That statute is now R.S. 13:30 and contains the identical language that was found in Article 7, § 8 of the Constitution of 1921, except that mandatory retirement age is fixed at 70 years (or 20 years of service or the age of 80, whichever shall occur first).

The Constitutional Convention, in continuing the provisions of old Article 7, § 8 as statutory material, could not have intended to abandon the provision that retirement is compulsory at age 70 (age 75 under the old Constitution) and that retirement creates a vacancy in the office.

It is not clear to me that the Judiciary Commission article in the 1974 Constitution was intended to affect R.S. 42:76, ■ which was designed particularly to provide for the case when an unauthorized person attempts to remain in possession of “any public office.” The method is efficient: the attorney general is authorized to file suit in the parish in which the case arises, and make a record in the district court. This court’s inherent power and jurisdiction are not jeopardized by such a proceeding.

      . Moreover, this Court has held that the methods prescribed in the constitution for ridding the people of unworthy officials are exclusive. In re Jones, 202 La. 729, 12 So.2d 795 (1943).

      . The joint resolution proposing the amendment, in pertinent part, provided:
      “Proposing an amendment to Article IX of the Constitution of Louisiana by repealing Section 5 thereof and amending Section 4 thereof to abolish the grounds and procedures for removal of justices and judges .by suit and to provide in lieu thereof for grounds and procedures for the removal and involuntary retirement of justices and judges by the Supreme Court on recommendation of a Judiciary Commission, and the effects thereof, and to provide for the creation and functions of the Judiciary Commission and to provide for a chief executive officer thereof.
      “Section 1. Be it resolved by the Legislature of Louisiana, two-thirds of the members elected to each house concurring, that, on recommendation of the Louisiana State Law Institute and under authority of Act 530 of 1964 and Act 36 of 1964, there shall be submitted to the electors of the State of Louisiana for their approval or rejection, in the manner provided by law, a proposition to amend Article IX of the Constitution of Louisiana by repealing Section 5 thereof and by amending Section 4 thereof so that Section 4 shall read as follows:
      “Section 3. On the official ballot to be used at said election there shall be printed:
      “FOR the proposed amendment of Article IX of the Louisiana Constitution to repeal Section 5 thereof and amend Section 4 thereof to abolish the grounds and procedures for removal of justices and judges by suit and to provide in lieu thereof for grounds and procedures for removal and involuntary retirement of justices and judges by the Supreme Court on recommendation of a Judiciary Commission, and the effects thereof, and to provide for the creation and functions of the Judiciary Commission and provide for a chief executive officer thereof, and also:
      “AGAINST the proposed amendment of Article IX of the Louisiana Constitution to repeal Section 5 thereof and amend Section 4 thereof to abolish the grounds and procedures for removal of justices and judges by suit and to provide in lieu thereof for grounds and procedures for removal and involuntary retirement of justices and judges by the Supreme Court on recommendation of a Judiciary Commission, and the effects thereof, and to provide for the creation and functions of the Judiciary Commission and provide for a chief executive officer thereof.
      “Each elector voting on said proposition shall indicate his vote relative thereto in the manner provided by the general election laws of the State of Louisiana.”

      . In his presentation and explanation of the Judiciary Article, the Chairman of the Judiciary Committee stated 'that section 25 “continues the Judiciary Commission in the constitution” as a vehicle for removing judges which has “worked well and served a good purpose.” Vol. X, Verbatim Transcript, Constitutional Convention of 1973 (August 22, 1973), p. 46.
      The remarks of another delegate, Mrs. Zervi-gon, confirm the intention that the Supreme Court, acting upon recommendation of the Judiciary Commission, continue to enjoy original exclusive jurisdiction over the removal of judges:
      “But bear in mind, that when it comes to-judges of courts of record, "the citizens have no input on the removal process. No one outside the judicial branch really has meaningful input on the removal process because there is no recall and because of the other removal processes that we put in the executive department section and the legislative department section don’t apply to judges of the court of record.” Vol. X, Verbatim Transcript, Constitutional Convention of 1973 (August 22, 1973), p. 63.
      See also Hargrave, The Judicial Article, 37 La.L.Rev. 765, 868 (1977).


text:
    STATE of Louisiana ex rel. Joseph ROSENTHAL v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66005.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Joe Rosenthal, applying for writ of mandamus. Parish of Orleans. Nos. 258-944 and- 234-685.

Writ granted. Trial judge is ordered to grant relator the transcript of his Boykin examination in case no. 258-944, Sec. “E”.


text:
    STATE of Louisiana ex rel. Joe ROSENTHAL v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66005.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
   In re Rudolph F. Becker, III, Judge, Orleans Parish Criminal District Court, Section “E”, applying for rehearing of granted writ on January 11, 1980. Orleans Parish. No. 258-944.

Denied.


text:
    Wade G. FAULK v. STATE of Louisiana et al.
    No. 66880.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Wade G. Faulk, applying for certio-rari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 382 So.2d 992.

Writ denied.

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


text:
    Henry E. PACE v. PARKER DRILLING CO. AND SUBSIDIARIES.
    No. 66868.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Parker Drilling Co., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston. 382 So.2d 988.

Writ denied.

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


text:
    Michael J. PAVLIK v. Judy M. PAVLIK.
    No. 67231.
    Supreme Court of Louisiana.
    April 9, 1980.
   In re Judy M. Pavlik, applying for writ of certiorari or review. Parish of Terrebonne. No. 60,083.

Writ denied.


text:
    In the Matter of Larry COOLEY, Guy Clement, Jr., Aubrey Stalsby, and Roy Gibliant.
    No. 67204.
    Supreme Court of Louisiana.
    April 11, 1980.
   In re Larry Cooley, Guy Clement, Jr., Aubrey Stalsby, and Roy Gibliant applying for supervisory writs. Parish of Calcasieu. Number unknown.

Writ denied.

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


text:
    STATE of Louisiana v. Lester J. BOURG.
    No. 67420.
    Supreme Court of Louisiana.
    May 13, 1980.
   In re Lester J. Bourg, applying for writs of certiorari, prohibition, mandamus. Parish of Orleans. No. 275-118.

Writ denied. Relator has adequate remedy on review.


text:
    STATE of Louisiana v. James LAWRENCE et al.
    No. 67512.
    Supreme Court of Louisiana.
    May 16, 1980.
   In re James Lawrence et al., applying for remedial writs, and stay order. Parish of Jefferson. 24th Judicial District Court. No. 78-2786.

Writ denied. Adequate remedy in the event of conviction on appeal.


text:
    STATE of Louisiana v. Gilbert WILLIAMS.
    No. 67518.
    Supreme Court of Louisiana.
    May 16, 1980.
   In re Gilbert Williams applying for remedial writs. Parish of Orleans. No. 275-049.

Denied.


text:
    OCEANIC CONTRACTORS, INC. v. UNDERWRITERS AT LLOYD’S, London and the Institute of London Underwriters.
    No. 67560.
    Supreme Court of Louisiana.
    May 16, 1980.
   In re Terra Nova Insurance Co., Ltd., Sumitoma Marine Fire Insurance Co., Ltd., Dominion Insurance Co., and Turegum Insurance Co., applying for writs of mandamus. Parish of Orleans. Civil District Court. No. 79-15026 c/w 79-16098.

Denied.