text:
    STATE of Louisiana v. Ruffes TUESNO.
    No. KA-2021.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Chris Christofferson, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Before GARRISON and WARD, JJ., and L. JULIAN SAMUEL, J. Pro Tem.
   L. JULIAN SAMUEL, Judge Pro Tem.

Ruffes Tuesno was charged by bill of information with armed robbery, a violation of La. R.S. 14:64. Following a trial by jury, he was found guilty as charged and a sentence of fifteen years was imposed. The State then filed a multiple offender bill against the defendant and, after a hearing on the matter, the trial judge held the defendant to be a second felony offender. Defendant’s original sentence was vacated and he was sentenced to serve thirty-three years at hard labor with credit for time served.

Tuesno’s conviction was affirmed by the Louisiana Supreme Court. State v. Tuesno, 408 So.2d 1269 (La.1982). On November 28, 1983, the same court set aside his enhanced sentence and reinstated the original fifteen year sentence stating: “The trial court was without jurisdiction to impose an enhanced sentence as an order of appeal had been entered prior to imposition of the enhanced sentence.” State ex rel Tuesno v. Maggio, 441 So.2d 1226 (La.1983).

The State then filed a second multiple offender bill. After a hearing on that second bill, Tuesno again was adjudged to be a multiple offender, and he again was sentenced to serve thirty-three years at hard labor with credit for time served.

Defendant now appeals only his adjudication as a second felony offender pursuant to La. R.S. 15:529.1. He has two assignments of error.

ASSIGNMENT OF ERROR NO. 1

By this assignment, defendant argues the trial court erred in adjudging him to be a second felony offender because the transcript of his guilty plea in the underlying felony fails to indicate he was informed of his right to appeal or appellate review if convicted at a trial on the merits. Relying on Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and La. Const. Art. I, § 19 (1974), he contends a defendant must be informed of his right to appeal or judicial review before he can enter a constitutionally valid guilty plea.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that a guilty plea may not be accepted unless there is an affirmative showing that it is intelligently and voluntarily made. In so holding, the Boykin court noted that:

“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth ... Second, is the right to trial by jury ... Third, is the right to confront one’s accusers ... We cannot presume a waiver of these three important federal rights from a silent record.” 395 U.S. 238, 243-244, 89 S.Ct. 1709, 1712 (Citations omitted)

In State ex rel. Jackson v. Henderson, 255 So.2d 85 (La.1971), the Louisiana Supreme Court interpreted Boykin to require an express and knowing waiver of at least these three federal constitutional rights (i.e., the right against self-incrimination, the right to a trial by jury, and the right to confront one’s accusers) as a predicate to a constitutionally valid guilty plea.

Defendant now urges us to expand the three-right articulation rule of Boykin and Jackson and adopt a rule declaring invalid guilty pleas in which the trial judge fails to inform the defendant of his right to judicial review of a trial conviction. He argues that under La.Const. Art. I, § 19 (1974), a defendant has a constitutional right to judicial review and that under Boykin and Jackson, he must be informed of this right in order for him to intelligently and knowingly enter a guilty plea. We do not agree.

La. Const. Art. I, § 19 reads:
“No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.”

When a defendant pleads guilty he is in reality waiving much more than the three constitutional trial rights articulated in Boykin. He is also waiving the presumption that he is innocent until proven guilty, his right “to a speedy, public and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law,” to compulsory process for obtaining witnesses, to present a defense and to testify in his own behalf. He also waives his right to non-excessive bail before and during trial. He also waives his right to be free from unreasonable searches and seizures, and to have excluded from the trial any evidence illegally seized, and he waives many more rights not mentioned here, particularly, but not exclusively, considering Art. I, § 24 of our state constitution.

Boykin does not require the trial judge to review with the accused a ritualistic litany of all the rights he is waiving when he pleads guilty. The decision itself does not set forth a rule of procedure. State v. Bowick, 403 So.2d 673 (La.1981). The purpose behind Boykin is simply to insure that the defendant has adequate information so that his decision to plead guilty is truly intelligent and voluntary. State v. Martin, 382 So.2d 933 (La.1980); State v. Murray, 436 So.2d 775 (La.App. 4th Cir.1983). As required by Boykin and Jackson, an articulation of at least the three basic rights therein enumerated is fundamental to this understanding. Outside of this, it is sufficient if the totality of circumstances surrounding the guilty plea reveals its voluntary and knowing nature.

We decline to expand the list of rights about which a defendant must be warned by the trial judge. Were we to hold that this defendant’s Boykinization should have included information of his right to appeal or appellate review, it would necessarily follow that he should be informed of all of the other rights he was waiving by pleading guilty, and such full information, we are convinced, would only serve to confuse a defendant.

A guilty plea should be sustained where it is affirmatively shown there has been compliance with the three-right rule of Boykin and Jackson, and that the totality of circumstances surrounding the plea demonstrates its voluntary and knowing nature. Here we are satisfied that the defendant intelligently and voluntarily pled guilty to the predicate offense.

At the hearing on the multiple offender bill, the State introduced into evidence a certified copy of the bill of information, a fingerprint card, and the transcript of the testimony taken in connection with the defendant’s 1980 conviction of illegal use of weapons, a violation of La. R.S. 14:94. This conviction was based on a plea of guilty entered by the defendant on July 14, 1980. The transcript of the colloquy between the trial judge and the defendant, recorded contemporaneously with the guilty plea, reflects that defendant was represented by counsel, was explained the elements of the offense with which he was charged, and was informed of and expressly waived his right to trial by jury, his right to confront his accusers, and his privilege against self-incrimination both at the time of the plea and at trial. In response to questioning by the trial judge, the defendant expressly said his attorney had explained his rights to him, that he understood them, and that he was pleading guilty of his own free will.

Accordingly, we find the defendant was adequately Boykinized, and that the totality of the circumstances indicates his guilty plea was made with “a full understanding of what the plea connotes and of its consequences.” Boykin v. Alabama, 395 U.S. at 244, 89 S.Ct. at 1712. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, the defendant contends the trial court erred in adjudging him to be a second felony offender because the State delayed excessively in charging him as a multiple offender.

Tuesno originally was charged as a multiple offender in August, 1981, some four months after his conviction of armed robbery. As has been said, the sentence for that multiple conviction was set aside by the Louisiana Supreme Court. The case was remanded to the trial court on November 28, 1983. State ex rel Tuesno v. Maggio, 441 So.2d 1226 (La.1983). Tuesno again was charged with being a second felony offender on January 19, 1984, less than two months after the Supreme Court’s decision and remand.

In State v. Broussard, 416 So.2d 109 (La.1982) the Supreme Court of Louisiana held that the district attorney must file an habitual offender bill within a “reasonable time” after the prosecution knows that a defendant has a prior felony record. The Court reasoned that: “The same considerations which underlie the constitutional right to a speedy trial compel a conclusion that upon conviction a defendant is entitled to know the full consequences of the verdict within a reasonable time. Since the enhancement of penalty provision is incidental to the latest conviction, the proceeding to sentence under that provision should not be unduly delayed.” State v. Broussard, 416 So.2d 110-111 (La.1982).

Under the circumstances here, we do not find an unreasonable delay in the institution of the habitual offender proceedings. It was the Supreme Court’s decision which necessitated the refiling of the multiple bill in January, 1983. The multiple bill proceeding was instituted less than two months after that decision. Two months certainly is not an unreasonable delay. Accordingly, this assignment of error is without merit.

DECREE

For the foregoing reasons, the defendant’s conviction as a second felony offender pursuant to La. R.S. 15:529.1 is affirmed.

AFFIRMED.

      . La. Const. Art. I, § 16

      . La. Const. Art. I, § 18

      . La. Const. Art. I, § 5

      . La. Const. Art. I, § 24 reads:
      "The enumeration in this constitution of certain rights shall not deny or disparage other rights retained by the individual citizens of the state.”

      .We note that this court, of course, must follow a Supreme Court of Louisiana express ruling to the contrary, but wc know of no holding by that court which expands Boykinization so as to include the right to appeal or judicial review.

      . The Supreme Court’s decision in vacating the first enhanced sentence expressly provided for the refiling of the multiple bill. See State ex rel Tuesno v. Maggio, 441 So.2d 1226 (La.1983).


source: Caselaw Access Project

author: L. JULIAN SAMUEL, Judge Pro Tem.

license: Public Domain

text:
    LOUISIANA WEEKLY PUBLISHING CO., INC. and Constant C. Dejoie, Jr., individually and as President, Publisher and Stockholder v. FIRST NATIONAL BANK OF COMMERCE, Henry B. Dejoie, individually and as a Stock Holder, and Renette D. Hall, individually and as a Purported Representative of a Purported Stock Holder, Louise Wilcox, and Louise Wilcox.
    No. C-2728.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.

      Ernest L. Jones, New Orleans, for relator.
    John S. Keller, New Orleans, for respondent.
    Before GARRISON and WARD, JJ., and L. JULIAN SAMUEL, J. Pro Tem.
   L. JULIAN SAMUEL, Judge Pro Tem.

Relators have applied for writs and respondents have replied. The only issue before us is whether the trial judge correctly maintained respondents’ exception of res judicata to the relators’ writ of quo war-ranto. On the showing made, the facts are as follows:

The res judicata exception was based on judgments rendered in the following two cases:

1. “Henry B. Dejoie, Sr. v. Vivian Rous-sell and the Louisiana Weekly Publishing Company”, No. 82-18213 of the docket of the Civil District Court, a suit for specific performance of a contract to sell stock. In that matter, plaintiff (a relator herein) had alleged that on March 7, 1980 he and defendant Roussell (his sister) had entered into a contract in which she agreed to sell him her sixty (60) shares of stock in the Louisiana Weekly along with “twenty (20) odd Louisiana Weekly shares, from the estate.” The trial court dismissed the suit. On appeal, this court affirmed solely on the ground that the contract had been annulled by mutual consent of the parties and specifically refused to rule on the question of whether the Articles of Incorporation prohibited enforcement of the contract. Dejoie v. Roussell, 447 So.2d 104 (La.App.4th Cir.1984).
2. “Louise Wilcox v. Henry Dejoie, Sr., Constant C. Dejoie and Vivian Rous-sell”, No. 83-18777 of the docket of the Civil District Court, a suit for mandamus and injunctive relief as a shareholder’s derivative action and, in the alternative, as a personal action. Plaintiff in that suit (apparently also a relator herein) alleged certain transfers of stock were in violation of the Articles of Incorporation of the Louisiana Weekly, which articles provided that no shareholder could transfer his shares without first offering the stock to the corporation and, if it failed to exercise the option, then to the remaining stockholders. Defendants filed exceptions of nonjoinder of an indispensible party, no right of action, unauthorized use of summary proceedings and prematurity. The trial judge granted the exception of no right of action, finding that plaintiff had failed to provide any documentation to show her interest in the suit, and the exception of nonjoinder of an indispensible party, since the corporation was not joined as a defendant. Other findings were made by the trial court but they were dicta because the judgment maintained only the exceptions of no right of action and nonjoinder of an indispensible party, and dismissed as moot the exceptions of unauthorized use of summary proceeding and prematurity.

This case (No. 84-11436) was brought by the present respondents. It sought a permanent injunction against the defendants prohibiting them from refusing to recognize the validity of elections of certain transferees of stock and the actions taken by them as newly elected directors of the corporation. Defendants (relators here) answered and reconvened for an injunction to prohibit any action by the officers or directors pursuant to the above transfers and elections. During the course of the proceedings, the trial judge expressed the opinion that quo warranto (not injunction) was the proper procedural vehicle. Rela-tors then amended their original answer and reconventional demand to pray for a writ of quo warranto. Respondents then filed the exception of res judicata based on the suits and judgments previously described.

L.S.A.-CC. art. 2286 defines res judicata (“the thing adjudged”) as follows:

The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

Thus, the peremptory exception of res judicata is based upon a judgment rendered in a prior suit and relitigation of the object of a judgment is prohibited where there is identity of (1) the thing demanded, (2) the cause and (3) the parties. The absence of any one of the conditions is fatal to a plea of res judicata. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); Safeco Ins. Co. of America v. Palermo, 436 So.2d 536 (La.1983).

THE FIRST SUIT (NO. 82-18213)

In this first suit at least one of the requirements of article 2286 has not been met.

The thing demanded is different in the two suits. The first demands specific performance of a contract to sell stock. The present suit is a quo warranto action whereby plaintiffs-in-reconvention demand that the officers and directors of the corporation show by what authority each holds his position.

Because there is no identity of at least one of the crucial elements in the present suit and the first suit, the latter does not constitute a basis for res judicata and does not prevent relitigation here.

THE SECOND SUIT (NO. 83-18777)

The judgment in the second suit ordered only that defendants’ exceptions of no right of action and nonjoinder of an indispensible party be maintained. The other exceptions were dismissed as moot. The “thing adjudged,” the “object of the judgment”, in the second suit was that Louise Wilcox had not shown she had a right of action, (an interest in the controversy). The trial court’s conclusion .that the plaintiff had no right of action brought the second suit to an end and there was nothing left to decide. Thus, insofar as the record before us reflects, the issue of the validity of the transfer of shares from Constant Dejoie to the respondents-in-writ, has not been previously litigated.

Accordingly, the second suit does not constitute a basis for res judicata and does not prevent litigation in this quo warranto suit.

For the reasons assigned, the judgment complained of is reversed and it is now ordered that there be judgment dismissing respondents’ exception of res judicata. The matter is remanded to the trial court for further proceedings. All costs are to await a final disposition.

REVERSED AND REMANDED.


author: SULLIVAN, Justice, for the Court:

text:
    Albert SHAVERS v. STATE of Mississippi.
    No. 55019.
    Supreme Court of Mississippi.
    Aug. 22, 1984.
    Rehearing Denied Sept. 26, 1984.
    Jerry T. Johnston, Johnston & Younger, Brandon, for appellant.
    Bill Allain, Atty. Gen. by Billy Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   SULLIVAN, Justice, for the Court:

Albert Shavers was convicted in the Circuit Court of Rankin County, Mississippi, for the forcible rape of one Mrs. Willie Mae Spann in violation of Mississippi Code Annotated § 97-3-65(2) (Supp.1983). Upon his conviction, the jury unanimously agreed that he should be sentenced to life imprisonment. Shavers appeals.

Appellant assigns three errors:

1. The trial judge erred in admitting into evidence testimony of three witnesses which had not been furnished appellant in compliance with an order of production.

2. The lower court erred in denying the appellant a directed verdict at the close of the state's case in chief.

3. The lower court erred in denying appellant’s motion for mistrial due to improper closing argument.

About 5:30 or 6:00 p.m. on the afternoon of July 6, 1982, Mrs. Spann, an eighty-three year old black female, was accosted in her home by a black male who had broken into the house. She was wrestled down onto her bed and sexually assaulted. After the rape, her assailant took some change from a glass jar in her room and fled the house. Bernice Montgomery, niece of the victim, arrived at the house after the assault. When her aunt could not identify her assailant, Bernice Montgomery went outside and inquired of the crowd whether anyone had been seen coming from the house. She was informed that Shavers had been seen coming from the house. When the police arrived, they interviewed both Mrs. Spann and her niece. Mrs. Spann again could not identify her assailant and gave only a general description. After conversing with Mrs. Spann and the niece, the officers went to the Shavers’ residence, picked the appellant up and returned him to the Spann home where he was viewed by Mrs. Spann. The best identification the victim could give even at this point was that appellant looked just like her assailant. Even at trial, because of her failing eyésight, Mrs. Spann could not identify Shavers as the assailant. There was blood on the bedspread at the Spann home, and moist blood on the shorts worn by the appellant at the time he was arrested.

Appellant’s defense was that of alibi. He testified that at the time of the rape he had been playing ball with his cousin, Darrell Smith, and some ten other boys. He left the ball game about 6:30 and went to a laundromat, where he played some electronic games and then he went home. He testified that he had not been to the Spann house in some eleven years (he was 20 years old at the time of the trial), and that he had not raped the victim.

Medical testimony showed the victim had vaginal injuries consistent with rape, but no other bodily injuries, bruises or contusions were found. The blood both on the bedspread and on appellant's shorts was human blood but could not be typed. Appellant testified in explanation of the blood on his shorts that he was suffering from syphilis and that accounted for the blood. Medical testimony was introduced into evidence that it would be most unusual for someone suffering from syphilis to bleed in his underwear without having a visible sore. Examination of the appellant by the police officers at the time of his arrest did not reveal any visible sores consistent with syphilis on the body of the appellant.

At the trial, the witness Davis was called by the state on direct examination. The state had failed to produce this witness’s name as required by a production order under Uniform Circuit Court Rule 4.06 and defense counsel objected to the introduction of this witness on those grounds. The trial court sustained the objection, and the witness was ordered to stand down. At the conclusion of the state’s case, appellant’s counsel made a motion for a directed verdict which was overruled. Thereafter, the appellant put on two alibi witnesses and rested.

In rebuttal, the witness Davis stated that at about 5:30 p.m. she saw the appellant get on a bicycle, leave the basketball game, and ride down the road toward Mrs. Spann’s house. She watched him until he was out of sight. She further stated that the appellant returned on the bicycle about 20 or 30 minutes later to the basketball game.

Also on rebuttal for the state, Jimmy Marion, aged 15, testified that the appellant tried to borrow a quarter and Jimmy Marion’s bicycle but Marion refused. A little later Marion noticed that his bicycle was gone and then he saw Shavers coming from Mrs. Spann’s house on the bicycle. He further testified that upon his return to the basketball game Shavers was giving quarters to people to hold.

Tony Marion, aged 13, also called by the state in rebuttal, testified that when the appellant got on the bicycle he followed him around the curve and saw the appellant standing on Mrs. Spann’s porch.

This is the second trial of the appellant for this crime. The first trial ended in a mistrial. The defendant’s alibi testimony was placed in the record by reading into this record his testimony from the first trial.

DID THE LOWER COURT ERR IN ALLOWING THE REBUTTAL TESTIMONY OF THREE WITNESSES WHOSE NAMES HAD NOT BEEN FURNISHED IN COMPLIANCE WITH AN ORDER FOR PRODUCTION UNDER RULE 4.06, UNIFORM CRIMINAL RULES OF CIRCUIT COURT?

Shavers contends that the state 'should not have been permitted to use witnesses to rebut his alibi whose names were not furnished under the order for discovery he requested pursuant to Rule 4.06, Unif. Crim.Rules of Cir.Court. Rule 4.06 states:

The prosecution shall disclose to each defendant ...
(1) Names and addresses of all witnesses in chief proposed to be offered by prosecution at trial.

Without question, the state had failed to provide'the name of the witness Davis and the two young Marion boys to defense counsel as the court had ordered the state to do under Rule 4.06. Davis was the only witness offered by the state on their case in chief and her testimony was disallowed under proper objection under Rule 4.06. It further appears, however, that defense counsel knew of the presence of these three witnesses at the beginning of the trial when the rule was invoked and that the names of these three witnesses appeared on the subpoena docket for several weeks prior to the trial. Appellant’s counsel also had an opportunity to interview these three witnesses between the end of the first day of the trial and the beginning of the second day of trial but did not do so.

Rule 4.06 plainly limits disclosure to witnesses to be offered on the case in chief. In Thomas v. State, 377 So.2d 593 (Miss.1979), the state offered a witness in chief whose name was not disclosed in a Rule 4.06 discovery order, and this witness was not permitted to give evidence in chief. The witness was, however, called on rebuttal and no objection was made at trial. On appeal, this Court cited United States v. Windham, 489 F.2d 1389 (5th Cir.1974), to the effect that rebuttal witnesses are a recognized exception to witness disclosure requirements, and affirmed. Id. at 595. Thomas appears to be dispositive of the appellant’s first assignment of error, although it did not involve the defense of alibi.

Appellant’s attorney here, unlike in Thomas, again objected when these three witnesses were offered as rebuttal witnesses. However, the objection was predicated on Rule 4.06 and rebuttal witnesses are not discoverable under Rule 4.06. Therefore, it was not error to overrule the objection and allow the three witnesses to testify in rebuttal for the state.

Any prosecutorial duty to reveal to the appellant the names of the witnesses to be used to rebut his alibi would have arisen under Rule 4.07, which reads:

NOTICE OF ALIBI
Upon the written demand of the prosecuting attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such other time as the court may direct, upon the prosecuting attorney a written notice of his intention to offer a defense of alibi, which notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon which he intends to rely to establish such alibi.
Within 10 days thereafter, but in no event less than 10 days before the trial, unless the court otherwise directs, the prosecuting attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant’s alibi witnesses. [Emphasis added]
In Moore v. State, 405 So.2d 97 (Miss. 1981) this Court held that, where discovery is invoked under Rule 4.07, failure to reveal the names of the state’s rebuttal witnesses precludes their testimony from being allowed in evidence. Id. at 101.
Unlike Rule 4.06, where defense counsel must initiate discovery, Rule 4.07 applies only where the prosecutor requests a notice of alibi. Rule 4.07 was neither invoked at trial nor asserted as a ground for appeal in this case. There is no merit to appellant’s first assignment of error.
DID THE LOWER COURT ERR IN DENYING SHAVERS A DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE?

On appeal, appellant argues that his arrest was illegal and that in order for the state to make out a prima facie case it must conform with the rules of law involving arrest. This ground for directed verdict was not urged in the trial court, nor was it contained in appellant’s motion for a directed verdict. We will not put the trial court in error on an issue not placed before it and we must deem this ground to have been waived. Ponder v. State, 335 So.2d 885 (Miss.1976).

Furthermore, when appellant proceeded to put on his alibi witnesses after his motion for a directed verdict had been denied, he waived any error that may have occurred in the trial court’s denial of the motion. Rainer v. State, 438 So.2d 290, 291, 292 (Miss.1983).

There is no merit in appellant’s second assignment of error.

DID THE LOWER COURT ERR IN DENYING SHAVERS’ MOTION FOR MISTRIAL DUE TO THE PROSECUTOR’S IMPROPER CLOSING ARGUMENT?

No contemporaneous objection was made by defense counsel to the following three remarks by the district attorney:

“When the deputies had him downstairs that night did he say, ‘Naw, I didn’t do it. I got an alibi. Y’all please check this alibi.’ Did he do that?”
“Did he have the explanation of syphilis? No. He hadn’t got back and talked with his lawyer yet.”
“No evidence can prove it beyond all doubt. It’s just like when asked: do you know there is a God? None of us can know it. No personal knowledge of him who haven’t seen him, but we can read the Bible and can hear the word of God and can be convinced in your belief to a certainty that there is a God.”

After the jury had retired to consider the verdict, defense counsel moved for a mistrial. The trial court denied this motion because objection was not made in a timely manner, but was instead asserted after all arguments were concluded and the jury had retired, and was therefore waived. No error was assigned as to the prosecutor’s remarks in Shavers’ motion for new trial.

In Hill v. State, 432 So.2d 427 (Miss.1983), this Court held that “contemporaneous objections must be made to improper argument by the state, and unless such objection is made, any claimed error for such improper argument will not be considered on appeal.” (citations omitted) Id. at 439-440. In Hill as in this case defense counsel failed to assign the prosecutor’s closing remarks as error in his motion for new trial.

There is no merit to appellant’s assignment number 3.

We have examined this record and find no merit to any of the appellant’s assignments of error and, therefore, we affirm his conviction and sentence.

AFFIRMED.

WALKER and ROY NOBLE LEE, PJJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

PATTERSON, C.J., not participating.


text:
    Gary L. HALL v. STATE of Mississippi.
    No. 54909.
    Supreme Court of Mississippi.
    Aug. 29, 1984.
    Rehearing Denied Oct. 3, 1984.
    Robert Lotz, Covington, Ky., Donald Steighner, Columbus, for appellant,
    Bill Allain, Atty. Gen., by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   WALKER, Presiding Justice, for the Court:

This is an appeal from the Circuit Court of Lowndes County, Mississippi wherein the appellant, Gary L. Hall, was convicted of possession of controlled substances with intent to deliver and was sentenced to a term of eighteen years in the custody of the Mississippi Department of Corrections and fined $40,000.00. Aggrieved with the lower court’s holding, appellant has perfected his appeal to this Court contending it was error to overrule his motion to suppress evidence seized during a search of his safety deposit box at the National Bank of Commerce in Columbus, Mississippi.

On November 23, 1982 Officer Dowdle, Commander of the Columbus-Lowndes Narcotic Unit, received information through a reliable informant that a male person on November 16 was observed in the National Bank of Commerce acting very suspiciously. After renting a large safety deposit box this man secured a large black suitcase from his automobile, an Oldsmobile with Florida tags, returned to the Bank and presumably, while behind closed doors, emptied the contents of the suitcase into the deposit box. Dowdle contacted the bank president and learned that a box had been rented on November 16 by Raymond E. Eaves who listed his address as Post Office Box 1533 in Columbus, Mississippi. Officer Dowdle then went to the bank, and along with Bank officials approached the safety deposit box where he noticed a distinct acrid chemical type odor. It was later learned this address belonged to one Joseph Cook, owner of O.C. Electric Company. Mrs. Cook, who works for her husband’s company, testified she did not know Raymond Eaves.

From an investigation of various local motels, the register at the Best Western Motel in Columbus, Mississippi showed R.G. Evans was registered November 17 and the tag number on the registration came off of a Pontiac registered in Florida. Through police communications, it was discovered that Evans was an alias for Robert Glenn Hobson who was known to have dealt in drugs and explosives and at one time had been a patient in a mental hospital.

With this information and concerned that the safety deposit box might possibly contain explosives, Dowdle obtained a search warrant on November 29 from Charles Younger, Justice Court Judge in District No. 5. Before the warrant was granted Dowdle was placed under oath and presented his affidavit of underlying facts and circumstances (see Appendix “A”) as well as telling Younger orally of the reliability of his informant.

A locksmith was called in to aid the officer in opening the safety deposit box. Inside the box the men found over 12,000 quaaludes.

The appellant was arrested January 17, 1983 at the National Bank of Commerce carrying a large empty suitcase. On his person he had keys to a brown Oldsmobile and also a set of keys to a lock box located at another local bank.

I.

Appellant contends the attached affidavit did not establish probable cause for the issuance of a search warrant for his safety deposit box. We do not agree.

Probable cause exists when the facts and circumstances within an officer’s knowledge, or of which he has reasonable trustworthy information, are sufficient in themselves to justify a man of average caution in belief that a crime has been committed and that a particular individual has committed it. Holland v. State, 263 So.2d 566 (Miss.1972).

It was not until Dowdle feared the safety deposit box contained explosives that he sought a search warrant. This suspicion was based on the information which was received from Florida concerning a man named Evans in conjunction with the odor of an acrid type chemical which Dowdle smelled near appellant’s safety deposit box.

The United States Supreme Court in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) made it clear that probable cause may be established through the sense of smell stating:

At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant. We cannot sustain defendant’s contention, erroneously made, on the strength of Taylor v. United States, 286 U.S. 1, 76 L Ed 951, 52 S Ct 466, that odors cannot be evidence sufficient to constitute probable grounds for any search. That decision held only that odors alone do not authorize a search without warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such basis insufficient to justify issuance of a search warrant. Indeed might very well be found to be evidence of most persuasive character.

92 L.Ed. 440.

The learned Circuit Judge, Harvey Buck, found that under the totality of the circumstances the Justice Court Judge did have probable cause for issuance of the search warrant and rendered the following scholarly opinion explaining his ruling:

The Court, after hearing evidence and argument of counsel on the Motions to Suppress filed in Cause Numbers 7917, 7918, 7919, 7823, 7920, 7921, and 7922, and consolidated for hearing by the parties, issues the following opinion:
Probable cause is an intangible concept. Undoubtably it is comprised of little building blocks of facts as characterized in the argument of the prosecution; yet there is none of the precision and concreteness that the use of the term “building blocks”, suggests. In fact, the whole concept is somewhat vague by its very nature. It is defined in terms of what a “reasonable” man would believe; but we as individuals all have a different perception of what is “reasonable” in a given situation. This case presents us with an illustration of that fact.
It is now the duty of the Court to pass on the actions of the Law Enforcement Officers involved in this investigation and determine if there was probable cause, as a matter of law, for the searches conducted herein. What this Court must do, using the Prosecution’s analogy, is step back and size up the pile of building blocks to see if it reaches that quantum referred to as probable cause.
Initially, the officer received a tip from an informant concerning the behavior of an individual at a local bank. The informant told the officer that a few days before, he had seen an individual acquire a lockbox in the bank. This man had carried a large suitcase up to the lockbox area and subsequently departed in a hurry. During the whole transaction, he appeared nervous and spoke abruptly. The vehicle in which he traveled was noted to have Florida tags, and there was some indication that they were from Dade County. There is no averrment in the affidavit that this informant was reliable nor was there any facts presented which would support such a characterization. This tip alone is certainly insufficient to form probable cause in the Court’s opinion.
The officer then proceeded to verify with the President of the bank that a box had indeed been rented on that particular day. This verified, although only to a small degree, the informant’s information.
Next, the officer obtained the name and address of the individual who had rented the box, a Raymond Eaves. Upon a check, the address proved to be that of a completely different individual who had no knowledge of Raymond Eaves. Once again, this alone is insufficient, in this Court’s opinion, to form probable cause.
The investigator then checked all the hotel reservations in the area and found that an R.G. Evans with a Florida address had spent the night of November 17, 1982, in Columbus. He then contacted Dade County, Florida, and discussed the case with a deputy sheriff. He was informed that the name of “R.J. Evans” was an alias for a Robert Glenn Hobson. The information on Hobson was that he had been a mental patient with a history of various felonies, including crimes with explosives. This reputation and background evidence, once again was insufficient, standing alone, for probable cause.
The officer then went with a member of the Bank to the particular deposit box rented, a noticed a distinct acrid smell which the Bank official indicated was not normal. With this information it is the opinion of the Court that the Bank officials — in the absence of action by law enforcement officers — would have been derelict in their duties had they not requested a search warrant for the lock-box, not only for the protection of their property but for the safety of their employees and customers. There has been testimony that a number of innocuous items may have produced the odor so described, however, the testimony was that there was a number of explosives which could also emit such an odor. Once again, in and of itself, this does not provide probable cause.
However, the Court is not examining each of these factors separately. They must be viewed as a whole. Harris v. U.S., [403 U.S. 573], 91 Sct 2075 [29 L.Ed.2d 723] stands for the proposition that an informant’s tip which does not supply probable cause in and of itself may still supply part of the sum total of probable cause. Significantly, the Harris decision also points out that reputation and background may also contribute to probable cause. Furthermore, Miller v. State, 373 So2d 1004 stands for the proposition that the use of the sense of smell can also be an additional factor in determining probable cause. Royer v. Florida, [460 U.S. 491], 103 Sct 1319, [75 L.Ed.2d 229] stands for the proposition that the so-called Drug Courier Profile can provide a certain quantum of probable cause, although insufficient probable cause when standing alone for an arrest and search. It is significant to note that many of the factors listed in the Royer decision which are within the profile are present here. Royer was a young male casually dressed as was the individual in this case. Royer was carrying a large suitcase, appeared pale and nervous, and gave false information on a questionnaire provided him by the airport. All of these factors are present in this case.
Taking these < circumstances as a whole, as the Court must, this Court cannot say that the officer acted unreasonably or that a reasonable man would not have believed that there was some type of explosive device located in the lockbox on the date in question. In making its ruling, the Court is not unmindful of the situation in which the police officers were placed. There existed a potentially dangerous set of circumstances. Had there indeed been a bomb in the lockbox, or some other type of explosives, a detonation, either accidental or intentional, would have resulted in great loss of life. The officers were thus placed on the “horns of a dilemma” wherein they were “damned if they did and damned if they didn’t.”
It is vigorously and ably urged by defense counsel that the background information and the sense of smell alone are insufficient to establish that there were explosives in the lockbox. However, when dealing with probable cause one deals with what is probable, not certain. While it is true that the testimony revealed that a number of substances could have emitted the described odor, the Court feels that this situation is nonetheless analogous to the almost proverbial “clear plastic bag containing brown vegetable matter” that is frequently discovered by officers in their searches. For all the officers may know, the brown matter may be brown tea leaves, dried grass, or any one of a number of other items which are not contraband. However, due to the circumstances surrounding the possession of this bag, the officer will make an arrest for possession of marijuana. Looking at the circumstances surrounding this odor and considering the affidavit and testimony that was presented to the Justice Court Judge, this Court is of the opinion that probable cause existed for the search of Lockbox No. 1254.

In our opinion the trial judge was eminently correct in holding that under the totality of the circumstances that probable cause did exist for the issuance of a search warrant and that the evidence obtained pursuant thereto was admissible.

II.

The appellant also asserts that the warrant and affidavit failed to describe the items to be seized with the required particularity. We find no merit to appellant’s contention as the term “explosives” is definite in and of itself. Once in the lockbox, the officers could seize any contraband withm plain view. See Prueitt v. State, 261 So.2d 119 (Miss.1972).

III.

Finally, the appellant asserts that the action of the bank president by voluntarily relinquishing confidential information from the bank records at the request of the police constituted an illegal search and seizure.

This assignment was not preserved in the trial court and is now procedurally barred from being raised the first time on appeal. See Isonhood v. State, 274 So.2d 685 (Miss.1973).

For the above stated reasons, the conviction and sentence are affirmed.

AFFIRMED.

ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.

1. That affiants have good reason to believe and do believe that certain things hereafter described arc now being concealed in or about the following place in this County: (here /jarficu/arfv describe the place to be searched /

A Safety Deposit Box #1254 located in the Safety Deposit Vault, National Bank of Commerce of Mississippi, 803 Main Street, Columbus, Mississippi

together will all approaches and appurtenances thereto.

2. That the place described above is occupied and controlled by:

Raymond E. Eaves and the National Bank of Conmerce of Mississippi

3 That said things are particular!) described as follows: (here describe the thing or things to be seized, taking care to describe only those things which affiants have probable cause to believe and do believe are concealed at the place described above, and with enough particularity to insure that an uninformed officer will not seize one thine under a warrant describing another. Mere evidence is not a proper subject of a search or seizure. Certain things subject to search and seiiure include, in addition to the specific subjects enumerated in the Code, all contraband, instrumentalities used in the commission of a crime; and books, writings, pictures and prints adjudged in a proper proceeding by a proper court to be obscene.)

Explosives, Drugs or any other contraband

4. Thai possession of the above described things is in itself unlawful (or the public has a primary interest m. or primary right to possession of, the above described things), in that said things arc: (here state briefly the use and intention for use of the specified things, citing the appropriate Code section or ordinance being violated and charging its violation and a brief narrative account of the offense being committed.)

In violation of Section 41-29-139 of the Mississippi Code of 1972 as amended and annotated

In violation of Section 97-37-23 and Section 97-37-25 of the Mississipj Code of 1972 as amended and annotated

5. The facts and circumstances upon which the court maj fairly ascertain the persuasiveness of the facts relied on to show probable cause to establish the foregoing grounds for issuance of a Search Warrant are as follow». to-v.n (Include enough of the underlying facts and circumstances to enable the issuing officer to fairly ascertain that probable cause exists for the issuance of the warrant. All persons having knowledge of the facts should sign the affidavit, be identified throughout by name, and appear before the issuing officer for examination, if possible.i

PROBABLE CAUSE

C.I. Informant on November 23, 1982 stated that he was in the vault of the National Bank of Commerce, Main Bank in Columbus, Mississippi on Main Street where he saw a suspicious acting individual asking the attendant for a large lockbox. Suspect stated he wanted the largest box they had. Informant said the attendant waited on him and was in the process of showing him this lockbox when the suspect disappeared. Informant followed the suspect and observed him go into a brown Cutlass Oldsmobile with a Dade County, Florida tag. He further observed him retrieve a large suitcase from this automobile and take the bag inside, upstairs in the bank. Informant said the suspect took from three to five minutes behind closed doors taking it out of the suitcase and putting it in the box. Informant said that the suspect put the suitcase back into the same automobile and left in a hurry. Suspect seemed very nervous, appeared in a hurry, coming and going; spoke abruptly to the attendant. Informant observed this on the 16th of November, 1982. Upon receiving this information from my informant, I contacted the Bank President to verify this information. The information related to me by the Bank President verified the informant’s statement. I further obtained the name and address of the person driving the car and renting the box to be on Raymond E. Eaves, whose address was given as P.O. Box 1533, Columbus, MS. I checked with the United States Post Office and P.O. Box 1533 is rented to O.C. Electric Company in the name of Joseph S. Cook, P.O. Box 1533, Columbus, Mississippi. I contacted Joseph S. Cook and asked him did he know any Raymond Eaves or Carrie Eaves; he said he did not know either individual and I asked him what his P.O. Box # was and he said P.O. Box 1533 and I further asked had he authorized anyone else to use his box number and he said he did not. He later learned that M.C. Edwards was present in the National Bank of Commerce Bank on November 16, 1982 and was alerted by my C.I. to observe this same suspect and I have interviewed Mr. Edwards who stated and verified that this individual did get in a Dade County car. Mr. Edwards further stated that he spoke to this individual when he entered the bank and I asked him did he speak back and he said “yes”. He said he could identify him if he saw him again. This investigator personally checked the hotel and motel reservations in the Columbus, Mississippi area and discovered, at random, that on November 17, 1982 at the Best Western Motel in Columbus, Mississippi that an R.G. Evans, given his address as 2083 Linton, Delray, Florida, listing the make of his automobile as a Firebird, liseense #NMM878 — he stayed one night in Room 201 in the Best Western Motel, Columbus, MS. This investigator contacted Dade County Sheriffs Office Division — Officer Jack Curtain. I talked to him on November 24, 1982. Deputy Curtain said he did checked land records, automobile registration and nothing came up in the name of Raymond E. Eaves or Carrie Eaves. I talked to him again on November 29,1982 and he told me that R.J. Eaves is an alias. His real name is Robert Glen Hobson. Curtain stated that Hobson is a white male, D.O.B. is January 16,1936 from Durham, North Carolina — tatoos on both arms. Curtain stated that this subject’s F.B.I.’s # is 759-048A. Hobson has been arrested numerous times in several states on various charges: such as multiple counts of Auto Theft, Grand Larceny, Forgery, Breaking and Entering, Possession of Explosives, and was a patient in Norfolk, Virginia in the General Hospital. A check determined that he was hospitalized as a mental patient. This investigator went to the National Bank of Commerce Safety Deposit Vault and physically observed this Box 1254 and noticed a distinct acrid, chemical type smell eminating from this box and not from surrounding boxes. The Bank Officer indicated that this smell was not a normal smell.

Date 11/29/82 /s/ Harry Dowdle Harry Dowdle Affiant

Date 11-29-82 /s/ C.J. Younger C.J. Younger, Justice Court Judge

      . Supreme Court Footnote: The "Eaves” appearing on the fourteenth line from the bottom was a typographical error and should read "Evans.”


text:
    Charles K. CROCKER v. COMMERCIAL NATIONAL BANK AND TRUST COMPANY OF LAUREL and J. Shannon Clark, Chancellor.
    Misc. No. 1734.
    Supreme Court of Mississippi.
    Sept. 12, 1984.

      J.W. Land, Michael K. Randolph, Bryan, Nelson, Allen, Schroeder & Randolph, Hat-tiesburg, for appellant.
    Richard L. Yoder, Deavours, Weems, Gilchrist & Yoder, Laurel, for appellees.
   ON PETITION FOR WRIT OF PROHIBITION

SULLIVAN, Justice, for the Court:

This matter comes before this Court on Petition for a writ of prohibition pursuant to Rule 32 of the Rules of the Supreme Court of Mississippi, seeking to prohibit Chancellor J. Shannon Clark from proceeding in cause number 34,981, entitled:

COMMERCIAL NATIONAL BANK & TRUST COMPANY OF LAUREL vs. CITY AUTO SALES, INC., SMALL-WOOD AUTO SALES, INC., CROCK-ERS, INC., CHARLES K. CROCKER, MILDRED G. CROCKER, TOM H. GRICE, WALTER SMALLWOOD, DEBORAH DENISE HILL, RHONDA CAROLE CROCKER, MAX CROCKER, CHALMER L. KNIGHT.

in the Chancery Court of the Second Judicial District of Jones County, Mississippi. The petitioner claims that the chancellor lost jurisdiction by operation of Rule 47 of the Rules of the Supreme Court of Mississippi.

We disagree.
FACTS
April 29, 1983: The Bank filed an action in the chancery court against Crocker and others seeking a $177,000 judgment against Crocker and a judgment setting aside several alleged fraudulent conveyances by Crocker.
July 15, 1983: Crocker answered the suit and included in his answer a motion to transfer to. the Circuit Court for trial by a jury.
November 18, 1983: Crocker called up the motion for transfer and the hearing was held upon that motion. When the hearing concluded, counsel for Crocker requested and was granted permission to submit additional authorities to the chancellor before the chancellor ruled upon the motion.
November 28, 1983: Counsel for Crocker submitted additional authorities to the chancellor by mail. In this letter of transmittal, Crocker’s attorney requested the opportunity to present further argument on the motion if the chancellor was still not convinced that the motion was well taken. No order was entered taking the motion under advisement or reserving ruling.
July 5, 1984: The clerk of the Supreme Court of Mississippi certified that no writ of mandamus had been applied for to force the chancellor to rule upon the motion.
July 12, 1984: Crocker’s attorney mailed a copy of the certificate of the clerk of the Supreme Court, along with his own “Certification of Serving Notice of Dismissal” to the attorneys for the Bank.
August 7, 1984: The chancellor signed an order overruling the motion for transfer to the circuit court.
The petitioner takes the position that from and after midnight July 3, 1984, the Bank’s case against Crocker was dismissed and the chancellor lost jurisdiction because of the Bank’s failure to seek mandamus in the Supreme Court to force the chancellor to rule upon the petitioner’s motion to transfer. This occurred, argues the petitioner, by operation of Rule 47.

In the alternative, the petitioner contends that if the entire case was not dismissed as of July 3, 1984, that at the very least the party, Crocker, movant in the motion to transfer, was dismissed as a party to that action, and that the chancery court had no further jurisdiction over him.

The respondent Bank contends that Rule 47 does not apply to motions but to cases, and, in the alternative, that if Rule 47 does apply to motions, it only serves to dismiss the motion to transfer as Crocker filed that motion and did not seek a mandamus to force the chancellor to rule upon his motion.

Petitioner further argues most strongly that his motion to transfer is based upon a constitutional right to trial by jury. This, of course, is a serious issue entitled to weighty consideration when properly before a court. It is not before us on this application for writ of prohibition.

Rule 47 in toto says:
MANDAMUS TO REQUIRE TRIAL COURT DECISION
If a trial judge in a civil case fails to render an opinion, ruling or finding within six months after taking a case under advisement or deferring such ruling or finding, any party in the case may apply to the Supreme Court for a writ of mandamus to compel the trial judge to render a decision on the matter taken under advisement or deferred. Application for a writ of mandamus must be made within forty-five (45) days after the expiration of six months from the date the case was taken under advisement by the trial judge.
However, in cases taken under advisement by a trial judge before May 15, 1982, in which no opinion is rendered within six months after the date the case was .taken under advisement, any party in such cases shall have until December 31, 1982 to apply for a writ of mandamus.
If the party who filed the original complaint fails to apply for a writ of mandamus within the time prescribed, the complaint shall stand dismissed without prejudice. If a party who has filed a counterclaim or a cross-claim fails to apply for a writ of mandamus within the time prescribed, the counterclaim or cross-claim shall stand dismissed without prejudice.
Application for a writ of mandamus by the party who filed the original complaint shall not relieve the party who filed a counterclaim or cross-claim from applying for a writ of mandamus within the time prescribed. Neither shall the application for a writ of mandamus by the party filing a counterclaim or cross-claim relieve the party filing the original action from applying for a writ of mandamus within the time prescribed. The party filing a complaint and the party filing a counterclaim or cross-claim may join in the application for a writ of mandamus.

The history and rationale of Rule 47 is found in Glenn v. Herring, 415 So.2d 695 (Miss.1982). We need not repeat it here. The purpose of Rule 47 is to assure that a trial court will promptly render judgment in a case and thus terminate the litigation or trigger the appellate process. The function of the rule is reduction of delay, increase of judicial efficiency and economy and procedural safeguards for litigants.

Rule 47 only applies where the trial court has neglected to enter a judgment from which any party would have a right to appeal to this Court in due course. A motion to transfer is not such a judgment.

Litigants, in appropriate circumstances, may still avail themselves of mandamus independent of Rule 47, and by this opinion we in no way limit access to that remedy. See Boydstun v. Perry, 249 So.2d 661 (Miss.1971).

The petition for Writ of Prohibition is denied. Our order of August 22, 1984, abating Cause Number 34,981, in the Chancery Court of the Second Judicial District of Jones County, Mississippi, is vacated. Said cause is returned to the docket of that court.

ORDER VACATED, WRIT OF PROHIBITION DENIED, AND CAUSE REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ„ concur.

PATTERSON, C.J., not participating.


author: ROBERTSON, Justice, for the Court:

text:
    Cloud TATE v. STATE of Mississippi.
    No. 55103.
    Supreme Court of Mississippi.
    Sept. 12, 1984.
    Cloud Tate, pro se.
    Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice, for the Court:

I.

Cloud Tate, Petitioner below and Appellant here, is in the custody of the Mississippi Department of Corrections under two separate sentences — the first a term of three years and the second six years — imposed following two separate convictions of burglary during two separate terms of the Circuit Court of Lowndes County, Mississippi. The Circuit Court has told Tate he must serve these sentences consecutively.

Tate now argues that his sentences should be reordered so that his six year sentence on the second charge will be served concurrently with so much as remains of his three year sentence. For two separate reasons, Tate’s appeal must be rejected.

II.

First, the second sentencing order does not expressly provide that the sentences will run concurrently. We ascertain the legal import of this omission by reference to Miss.Code Ann. § 99-19-21 (1972) which, at all applicable times, provided:

When a person is sentenced to imprisonment on two or more convictions, the imprisonment on the second, or each subsequent conviction, shall commence at the termination of the imprisonment for the preceding conviction, and the sentence ought to so specify. Provided, however, that when a person is convicted at the same term of a circuit or county court of more than one offense, the judge of such court may impose sentences on such convictions to run concurrently. [Emphasis added]

This statute has been construed so that, in the absence of language affirmatively indicating that sentences will run concurrently, the second term does not begin until the first has been completed. Ball v. State, 437 So.2d 423, 426 (Miss.1983); May cock v. Reed, 328 So.2d 349, 351 (Miss.1976); Pickett v. Thomas, 209 So.2d 192, 193 (Miss.1968).

On September 1, 1981, Tate entered his plea of guilty to the charge of burglary in Case No. 6966 on the docket of the Circuit Court of Lowndes County, Mississippi. His plea of guilty was accepted whereupon the Court imposed upon Tate a sentence of three years within the custody of the Mississippi Department of Corrections.

On February 25, 1982, Tate entered his plea of guilty to the charge of burglary in Case No. 7334 on the docket of the Circuit Court of Lowndes County, Mississippi. His plea of guilty was accepted whereupon the Court imposed upon Tate a sentence of six years within the custody of the Mississippi Department of Corrections.

Nothing in the sentencing order of February 25, 1982, indicates whether the sentencing judge intended that the six-year sentence run concurrently with or consecutively to the first sentence. Under the authorities indicated above, and under the statute as it read at that time, Tate’s two sentences run and must be served consecutively.

III.

Beyond that, the two sentences were imposed at different terms of the Circuit Court of Lowndes County, Mississippi. Glover v. State, 419 So.2d 588 (Miss.1982) holds that, under the law in effect at that time, the sentencing judge sitting at a subsequent term of court had no authority to provide that the six-year sentence run concurrently with the sentence in the earlier case. This is because the two sentences were not imposed, in the words of Section 99-19-21, “at the same term of court”. 419 So.2d at 589.

We note that Section 99-19-21 has been amended by the Mississippi Legislature to eliminate this construction. See Miss. Laws of 1983, Ch. 333, effective March 14, 1983. Under the statute as amended, the sentencing judge imposing the second term of imprisonment may “in his discretion” provide that the new sentence run consecutively or concurrently without regard to whether the two sentences be imposed at the same term.

This amended statute did not take effect until some thirteen months after Tate’s second sentence was imposed back on February 25, 1982. The Glover case was decided on September 15, 1982, some eight months after Tate’s second sentence. Glover authoritatively determines the state of our law back in February of 1982. That the Legislature has subsequently amended the statute and in effect overruled Glover gives Tate no comfort. See Allen v. State, 440 So.2d 544 (Miss.1983).

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE and SULLIVAN, JJ., concur.

PATTERSON, C.J., and PRATHER, J., not participating.


text:
    The CELOTEX CORPORATION and Robertson Sheet Metal Works v. J.B. WOMACK CONSTRUCTION COMPANY.
    No. 54394.
    Supreme Court of Mississippi.
    Sept. 12, 1984.
    Marc A. Biggers, Glenn F. Beckham, Up-shaw & Ladner, Greenwood, for appellant.
    Jerome B. Steen, Whitman B. Johnson, III, Steen, Reynolds, Dalehite & Currie, Jackson, Williamson & Smith, Mendenhall, for appellee.
    Before ROY NOBLE LEE, DAN M. LEE and ROBERTSON, JJ.
   ROY NOBLE LEE, Presiding Justice, for the Court:

This case is appealed by The Celotex Corporation (Celotex) and Robertson Sheet Metal Works (Robertson) from the Circuit Court of Simpson County, Honorable L.D. Pittman, presiding, wherein a judgment was entered in favor of J.B. Womack Construction Company granting a nonsuit prior to the introduction of testimony. The appellants have assigned five (5) errors in the proceedings below, but we discuss only one of the assignments which is dispositive of the appeal.

Did the lower court err in granting Wom-ack’s motion for voluntary nonsuit?

Prior to April 10, 1970, the Kemper County Board of Education entered into a general contract with Womack for the construction of a vocational building. Wom-ack subcontracted the roofing job to Robertson, which used roofing materials manufactured by Celotex. The building project was completed about April 10, 1970. Although the roof began leaking shortly af-terwards, the Kemper County Board of Education did not file suit until the year 1978. The suit was settled October 27, 1980, with Celotex paying $60,000, Robertson $5,000, Womack $5,000 and Climatic Control Engineers, Inc. $3,500.

The present suit was filed in July, 1981, by Womack in an effort to recover the $5,000 settlement paid by it, $14,111.62 for expenses incurred in the defense of the Kemper suit, $150,000 for the bad faith refusal of Celotex to defend and $100,000 punitive damages. Celotex answered, denying liability, and filed a counterclaim seeking additional contribution from Wom-ack.

On September 16,1982, the date for trial, Womack moved to amend the pleadings to allege $300,000 damages for emotional and mental distress due to the failure of Celo-tex to defend and $300,000 for the knowing use of improper materials. The lower court granted the motion to amend, and also sustained the motion of Celotex for leave to cross-examine Womack’s attorneys as to whether or not they were dilatory and had grounds for the amendment, since Cel-otex and Robertson had obtained substantial rights at that point in the suit. Thereupon, Womack moved the court for a non-suit, which was granted, and an order was entered dismissing the cause without prejudice. No disposition was made of the pending counterclaim of Celotex.

As stated, the question which disposes of this appeal is whether or not Celotex and Robertson had acquired such substantial rights in the litigation that the lower court abused its discretion in granting the non-suit. Those proceedings occurred prior to the effective date of the Mississippi Rules of Civil Procedure and the law governing such questions was that applicable prior to January 1, 1982.

Mississippi Code Annotated § 11-7-125 (1972) governing nonsuits follows: “Every plaintiff desiring to suffer a nonsuit on trial shall be barred therefrom unless he do so before the jury retires to consider its verdict.”

From the adoption of the above statute until January 1, 1982, the plaintiff had an absolute right to a nonsuit at anytime prior to the jury’s retiring or prior to a decision on the merits, either by the trial judge in circuit court or the chancellor in chancery court. The only exception was the defendant had acquired a substantive right in the litigation and would have been unduly prejudiced by the nonsuit. It has been common practice for plaintiffs to file suits, call witnesses, both adverse and cooperative, then to nonsuit at anytime during the trial in order to reform and prepare the case for better presentation. Such procedure was customary and took the place of interrogatories and depositions, now common, since most plaintiffs’ practitioners felt that procedure was more effective and adequate.

In the case sub judice, Celotex contends that it has been put to expense in bringing a non-resident defendant to court and that the county has been put to expense by having juries present. However, in First American National Bank v. Alcorn, Inc., 361 So.2d 481 (Miss.1978), the Court said:

Although the right of a complainant to take a nonsuit is large, it is not unlimited and lies within the discretion of the court. Mitchell v. Film Transit Co., 194 Miss. 550, 13 So.2d 154 (1943). Griffith, Mississippi Chancery Practice, section 534 (2d Ed.1950), states that a bill may not be dismissed when the defendant has secured some substantial right which will be destroyed by the dismissal. It further states that what constitutes a sufficient right in the defendant justifying a refusal of dismissal has never been embraced by any definite rule and illustrates with the following:
... Where a bill has made a tender or other certain offers and a defendant by his answer has availed of the same, and thereupon joins in the prayer of the bill, or where the rights of infants would be prejudiced by a dismissal; or where interlocutory decrees have already been made adjudging some rights to the defendants upon the merits of some of the issues in the case; or where a motion to dissolve an injunction has been made. But the defendant acquires no rights by the mere fact that he has been put to the inconvenience or expense of a defense....
(§ 534, p. 551)
Appellant argues that it acquired rights by what had occurred to entitle it to a successful objection against dismissal and cites as support Northern v. Scruggs, 118 Miss. 353, 79 So. 227 (1918), and Mitchell, supra. However, both of these eases involve the rights of minors and are therefore distinguishable from the present case. If the dismissal leaves defendant in the same position that he would have stood if the suit had not been instituted, then the right to dismiss is unimpaired until final submission to the chancellor on the merits. Griffith, supra, at page 551; Northern, supra. We think in the present case that the lower court properly granted a dismissal without prejudice to Spain and that this assignment of error is without merit. [361 So.2d at 493-494].

We are of the opinion that, under the law existing prior to the adoption of the Mississippi Rules of Civil Procedure, the lower court did not err in granting the nonsuit. The counterclaim of Celotex is still pending in the lower court. The nonsuit order did not constitute the final order from which an appeal may be perfected. Therefore, this appeal is dismissed without prejudice.

APPEAL DISMISSED.

WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.

      . The briefs reflect that in July, 1981, Womack refiled its suit against Celotex and Robertson.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. John Robert HERLOVICH, Appellee.
    No. 84-254.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Thomas D. Marryott of Norton & Mar-ryott, Punta Gorda, for appellee.
   PER CURIAM.

Affirmed. See Butterworth, In and For Broward County v. Fluellen, 389 So.2d 968, 970 (Fla.1980) (speedy trial issues not arising under the speedy trial rule “must be determined in the light of the circumstances of the particular case as a matter of judicial discretion”).

BOARDMAN, A.C.J., and DANAHY and LEHAN, JJ., concur.


author: RYDER, Chief Judge.

text:
    Larry Donald HARRINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-2454.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1984.
    Jerry HilJ, Public Defender and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Chief Judge.

Larry Donald Harrington was charged by information with manslaughter in August of 1983. Subsequently, he entered a plea of nolo contendere. At that point, Harrington had the opportunity to elect to be sentenced under the new Florida Sentencing Guidelines. In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

On November 19, 1983, the court sentenced Harrington, under the guidelines, to a term of fifteen years imprisonment with jail credit of 143 days. This sentence was a departure from the recommended range under the guidelines and, as required by the rule, the judge provided a statement explaining his reasons for departure. On appeal, Harrington argued that, in imposing his sentence, the trial court erred because he had never affirmatively requested to be sentenced under the guidelines, and that even if he had been properly sentenced under the guidelines, the aggravation of his sentence was an abuse of discretion. On appeal, Harrington was represented by the public defender who informed this court in his initial brief that after a review of the record, he was unable to find where any affirmative request to be sentenced under the guidelines had been made by either Harrington or his trial counsel. This court also had an answer brief which had been filed by the appellee which responded to the appellant’s points on appeal. The state’s brief did not provide a statement of the case and facts, and therefore obviously agreed with the public defender that Harrington had not opted to be sentenced under the guidelines. On this point, see Overfelt v. State, 434 So.2d 945, 949 (Fla. 4th DCA 1983). After an independent review of the record on appeal, which did not reveal any contrary findings of fact, this court reversed the sentence imposed upon the appellant’s first ground, and issued our June 1, 1984 opinion.

On June 8, 1984, the state filed a motion for rehearing where, lo and behold, a copy of Harrington’s election to be sentenced under the guidelines, which had been filed by the public defender on October 21, 1983, was attached to the motion. An affidavit by the Deputy Clerk of the Circuit Court of Collier County was also attached. The affidavit indicated that Harrington’s election to be sentenced under the guidelines for both this case and another case had been filed in the record of the other case, which was not appealed. Thus, although Harrington opted for guidelines sentencing in both cases, the record on appeal failed to reflect his election for guidelines sentencing in this case. The public defender and the state attorney general’s office now agree that this belated revelation renders moot Harrington’s first point on appeal. “These are the times that try men’s souls.”

On this motion for rehearing, we now address only the appellant’s second issue-— whether clear and convincing reasons existed for which the trial judge could aggravate Harrington’s sentence.

The total number of points calculated on Harrington’s sentencing guidelines score-sheet fell into a recommended range of three to seven years incarceration. The judge chose to depart from this recommended range and instead imposed a sentence of fifteen years. As required by Florida Rule of Criminal Procedure 3.701(d)(ll), the judge provided a written statement stating his reasons for departing from the guidelines and aggravating Harrington’s sentence, of which a major portion is set forth below.

The sworn statements of the eyewitnesses to the crime, as well as the statement of the Defendant himself, reflect that the Defendant and the decedent began a verbal argument in the late afternoon hours of 21 June 1983. At approximately 7:45 P.M., the decedent reported to the Im-mokalee Substation of the Collier County Sheriff’s Department that the Defendant had punched her in the mouth causing injury, and the Collier County Sheriff's Department responded and separated the two individuals and made each go his/her own way.
It appears from the evidence that the decedent and Defendant were companions to one Johnny Lee Anderson and his girlfriend, only known at this point as Dessie. It also appears that after being separated by the Collier County Sheriff’s Department, the Defendant took the car and went back after the decedent and stopped her at the Eastern Service Station in Immokalee. There, he continued the argument immediately with the decedent and began to punch her in the face with his fist and apparently smashing her head up against the truck, only stopping after Mr. Anderson attempted to physically prevent the Defendant from further injuring the decedent. This was to no avail. Even when several bystanders attempted to determine what was happening and to try to talk the Defendant into ceasing from this destruction, the Defendant pulled his machete and threatened to take care of anybody else who got in his way, and even told Mr. Anderson that if he did not stay out of the Defendant’s “business”, that “I’ll fuck you up”.
It is important to point out that the Defendant at no time ever showed any remorse for the actions he had taken, he consistently tried to hide the fact of what he had done, he consistently demonstrated a belligerent and criminal action toward anyone who interfered with his goal, to wit: the severe beating and death of the decedent, all of which actions occurred during a five-to-six hour ;period on the 21st day of June, 1983. (Emphasis supplied).
Even though the record does reflect that the Defendant did consume a minor amount of alcoholic beverages, it is also the Court’s clear impression that over the period of hours that transpired during 21 June 1983, the Defendant reached a definite state of mind in which it was his intent to beat this woman into submission and near death, unfortunately, actually accomplishing what his actions demonstrated his intent to be.
The Coroner’s report in this case does demonstrate that the decedent suffered as follows:
This 44-year old woman received at least ten (10) distinct blunt injuries to her head, at least one (1) of them severe enough to cause a cerebral concussion, unconsciousness and subdural hemorrhage.... The intracerebellar hemorrhage, as well as the petechial conjunctival hemorrhages of the eyes, in conjunction with non-specific degenerative brain damage are suggestive of temporary obstruction of neck veins.
Thus, it would appear that the Defendant brutally beat as well as strangled the decedent into the state of unconsciousness and coma, which eventually led to her demise.
The Court has taken the position that even though the Defendant pled to the Manslaughter charge in an agreement that the State would drop all of the other pending charges, it is important for the Court to still enforce those responsibilities and sanctions that the Court feels are to be imposed by society on this particular Defendant, necessitating a non-compliance with the Sentencing Guidelines. The Court’s concern is that under the Sentencing Guidelines the Defendant would receive a sentence of five (5) to seven (7) years, and the Court has no objection to the Defendant actually serving a full seven-(7)-year sentence. However, even though no one would ever seriously worry in the public sector as to what rights or concerns the decedent might have, especially since she was a 44-year old migrant, black, fruit-crop picker, the Court feels compelled to maintain that vigilance expected and demanded of society at large, even though she is now deceased.
THEREFORE, it is the Court’s desire and intent that based upon the amount of time involved in which the ongoing dispute occurred, the multiple injuries received by the decedent, the lack of remorse of the Defendant, and his actions toward all innocent bystanders, the Court can only conclude that a seven-(7)year “guideline” sentence, in which the Court has no control over the amount of reduction in sentence that the Defendant would receive based upon good time or gain time, it is the Court’s intention to insure that the Defendant actually serve a period of time in the State Prison System that is commensurate with the actions he took, as well as serving a minimum full seven-(7)-year sentence without any benefit of gain time or parole.

We hold this statement provides clear and convincing reasons upon which to depart from the recommended guidelines range. The judgment and sentence of the trial court is, therefore, AFFIRMED.

SCHOONOVER and LEHAN, JJ., concur.

      . T. Paine, The American Crisis, at 1 (1776).


text:
    L.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-850.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Bennett H. Brummer, Public Defender, and Lisa Bennett, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Finding that the state failed to meet its burden of demonstrating that the juvenile was unavailable for trial, we reverse on the authority of V.C. v. Ferguson, 422 So.2d 861 (Fla.3d DCA 1982), aff'd, 427 So.2d 722 (Fla.1983); State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla.3d DCA 1978). The record discloses that the juvenile was not served with notice to appear on the date that the trial judge extended the speedy trial time. Fla.R.Crim.P. 3.191.

Reversed and remanded with directions to discharge appellant.


author: BASKIN, Judge.

text:
    Donald JERVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1415.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.

      Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Defendant Donald Jervis represented himself in a non-jury trial. He was convicted of unlawful possession of a short-barreled rifle and received a sentence of 90 days in the Dade County Jail as a condition of a three-year term of probation. We reverse.

The record reflects that the trial court failed to conduct an adequate inquiry prior to accepting defendant Jervis’s waiver of counsel. Felton v. State, 438 So.2d 1049 (Fla.3d DCA 1983). As a result, we are unable to conclude that Jervis’s relinquishment of his right to counsel was knowing and intelligent. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In addition, the record fails to disclose that his uncounseled waiver of jury trial was knowing and intelligent. Enrique v. State, 408 So.2d 635 (Fla.3d DCA 1981), review denied, 418 So.2d 1280 (Fla.1982).

Reversed and remanded.


text:
    Joseph COVELLO, a/k/a Demus, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2355.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    P.D. Aiken, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

We reject Covello’s contention that he was entitled to discharge under the speedy trial rule. We affirm.

Executing a search warrant, police held Covello in his home at gunpoint. He was handcuffed, not permitted to move from his chair or to smoke a cigarette, and was photographed. He was released, however, and was therefore not entitled to discharge under the speedy trial rule, Fla.R.Crim.P. 3.191; D.L.M. v. State, 397 So.2d 439 (Fla. 3d DCA 1981); he was not taken into custody within the meaning of the rule.

Florida courts, addressing the issue of custody and speedy trial considerations, have uniformly held that a defendant is not in custody until he has been formally arrested, Williams v. State, 382 So.2d 847 (Fla. 3d DCA 1980); State v. Robbins, 359 So.2d 39 (Fla. 2d DCA 1978), or held for “something more than an investigatory detention,” State v. Christian, 442 So.2d 988 (Fla. 2d DCA 1983), citing Snead, v. State, 346 So.2d 546 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977). Defendant Covello was clearly in custody for fourth amendment purposes, but was not in custody under the speedy trial rule.

Affirmed.


author: GLICKSTEIN, Judge.

text:
    Edward J. STACK, Sheriff of Broward County, Florida, Appellant, v. Lou Ann SAXTON, et ux., North Broward Hospital District, etc., et al., Appellees.
    No. 83-854.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Rehearing Denied Oct. 19, 1984.
    David T. Price of Price & Byrne, Fort Lauderdale, for appellant.
    William Zei of Gibbs & Zei, P.A., Fort Lauderdale, for appellee-North Broward Hosp. Dist.
   GLICKSTEIN, Judge.

This case may ultimately result in an order granting North Broward Hospital District summary final judgment against a former sheriff on his third party complaint, but in our opinion there are unresolved factual issues which are material.

The case involves a prisoner who escaped in 1977 from Las Olas Rehabilitation Center in Fort Lauderdale after being delivered there by a deputy sheriff, and weeks later beat up a turnpike employee at the Jupiter toll booth.

The assaulted party and her husband sued the then-current sheriff, alleging pre-escape and post-escape negligence. The sheriff sought third party relief on the theory that it was the hospital district which was responsible for the prisoner’s being at the Las Olas facility from which he escaped. There is competent evidence now in the record from which such responsibility could reasonably be inferred.

The supplemental record consists of three witnesses’ depositions — the emergency room physician, Dr. Mirabel, who examined the prisoner; the former deputy who transported the prisoner from the jail to Broward General Medical Center for psychiatric evaluation pursuant to a court order, then to the Las Olas facility; and the custodian of the sheriff’s transportation logs for the date of transport. The foregoing court order directed the sheriff to take the prisoner from the county jail to Bro-ward General Medical Center and return him to the jail, and expressly recited that the sheriff was responsible for the security of the prisoner during those times. The court ordered the hospital, which we know to be a public hospital, to examine the prisoner to determine if he should be involuntarily hospitalized.

Two of the three depositions were taken six years after the incident. They show that when the prisoner arrived at the hospital emergency room he was hallucinating, staring at the wall and non-responsive to the questions of the emergency room physician, a hospital employee who examined him. The physician then telephoned the psychiatrist on call, who recommended that the prisoner be sent to Las Olas. The emergency room physician did not know if the psychiatrist to whom she spoke, Dr. Hernandez, was a private physician, and did not know “what kind of arrangement he had.” She stated that the psychiatrist made the decision what to do with the patient; however, the hospital chart, from which she translated her handwriting, including such abbreviations as BGER, meant the following, according to her testimony:

“Doctor Hernandez gave order of admit, but no beds here. Patient should be sent to Las Olas on involuntary admission.” These were the recommendations of Bro-ward General Emergency Room.

She also translated what she had written after diagnosis to say:

Rule out schizophrenic paranoia.

Although there is a lot of finger-pointing by the defendant sheriff and third party defendants, no one apparently “owns up” to any responsibility, although the hospital chart plainly reflects the existence of the hospital district’s recommendation. Dr. Mirabel’s testimony reflects the following statements as well:

So I contacted Dr. Hernandez over the phone through the secretary of the emergency room physician, and when we talk I explain what the situation was. And he said, “well, send him to Las Olas.” And we had to commit him involuntarily. The man would not go in on his own accord. So what we used to do is signed ,a court order. All these papers are handled by the secretary of the unit, by the emergency room secretary. And she handled all the papers. And this is just an everyday procedure we do all the time.
Q. Okay. When you were informed that Dr. Hernandez wanted the patient sent to Las Olas to be admitted there, did you advise the officers of this?
A. Yeah. Well, we went there and talked to the officer, “Look, we don’t have any beds here. I talked to the psychiatrist. He wants to admit this patient at Las Olas, and he ought to be taken there.” And that was it. You know, and the officer said fine.
So the secretary of the staff will prepare all the papers. It’s a long paperwork. And she did everything, and then they take it from there. Once I do that, I don’t know what happened any more. I mean, I don’t have anything to do with that any more. I did my part, and I went to another patient.
So that’s it.
Q. Okay. But you did advise the officers?
A. Oh, yeah. I mean, these papers— Oh, yes, you go and tell the officers what’s going on. And they were very nice, you know. We never had any—
Q. Do you know who those officers were? For example, on the emergency room chart it says Deputy Kahn.
A. I don’t remember their names.
Q. Okay. As best you’re able to recall back in 1977, would these people customarily be admitted? The people who were going to be examined by court order would be admitted to the hospital?
A. Oh, yes, absolutely. Either at Broward, if we had beds; or at Las Olas. Usually we had to send the patients to Las Olas, because the amount of psychiatrist beds with security that we have at Broward was not enough for our bulk. So we are almost full to capacity. So most of these patients were sent to Las Olas.

Althbugh the transporting deputy testified as to general procedure, the foregoing specifics on the present record, in our view, warrant a trial to determine the relationship between the hospital and the subsequent events, particularly as the deputy had no recollection in 1983 whatsoever of the 1977 incident. Moreover, the record is unclear as to the relationship between the psychiatrist and Broward General Medical Center. It does not support, in its present state, the argument made by North Bro-ward Hospital District in its brief and at oral argument that he was not employed by the hospital. - Further, we have no way of knowing what security existed at the Las Olas facility; and if the security was inadequate, whether the district knew that fact.

If we can “reasonably” interpret the record, which we believe we have done, to show that Broward General Medical Center may have been a material influence or materially causative factor by its “recommendation” and extensive logistical followup in the prisoner’s non-return to the jail, notwithstanding the court order, then we believe jurors should have been the ones to resolve the issues, not the trial judge. We hearken back to Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928). As Judge Friendly points out in Petition of Kinsman Transit Co., 338 F.2d 708 (2d Cir.1964):

The reason why the Long Island was thought to owe no duty to Mrs. Palsgraf was the lack of any notice that the package contained a substance demanding the exercise of any care toward anyone so far away; Mrs. Palsgraf was not considered to be within the area of apparent hazard created by whatever lack of care the guard had displayed to the anonymous carrier of the unknown fireworks.

Id. at 721 (footnote omitted).

We see no reason why an actor engaging in conduct which entails a large risk of small damage and a small risk of other and greater damage, of the same general sort, from the same forces, and to the same class of persons, should be relieved of responsibility for the latter simply because the chance of its occurrence, if viewed alone, may not have been large enough to require the exercise of care. By hypothesis, the risk of the lesser harm was sufficient to render his disregard of it actionable; the existence of a less likely additional risk that the very forces against whose action he was required to guard would produce other' and greater damage than could have been reasonably anticipated should inculpate him further rather than limit his liability. This does not mean that the careless actor will always be held for all damages for which the forces that he risked were a cause in fact. Somewhere a point will be reached when courts will agree that the link has become too tenuous — that what is claimed to be consequence is only fortuity. Thus, if the destruction of the Michigan Avenue Bridge had delayed the arrival of a doctor, with consequent loss of a patient’s life, few judges would impose liability on any of the parties here, although the agreement in result might not be paralleled by similar unanimity in reasoning; perhaps in the long run one returns to Judge Andrews’ statement in Palsgraf, 248 N.Y. at 354-355, 162 N.E. at 104 (dissenting opinion). “It is all a question of expediency, * * * of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.” It would be pleasant if greater certainty were possible, ... but the many efforts that have been made at defining the locus of the “uncertain and wavering line,” 248 N.Y. at 354, 162 N.E. 99, are not very promising; what courts do in such cases makes better sense than what they, or others, say. Where the line will be drawn will vary from age to age; as society has come to rely increasingly on insurance and other methods of loss-sharing, the point may lie further off than a century ago.

Id. at 725-26.

The Restatement (Second) of Torts § 435 (1965), adopted by the American Law Institute, provides:

Foreseeability of Harm or Manner of Its Occurrence
(1) If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.
(2) The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.

Here, the hospital knew the prisoner’s provisional diagnosis was schizophrenic paranoia, and that the prisoner had to be involuntarily hospitalized. As the record now reads, it undertook to have that done, thus affirmatively interjecting itself into the chain of events which led to the injury. In short, the record does not support summary judgment in its favor; therefore, we reverse and remand.

HERSEY and DELL, JJ., concur.


author: LETTS, Judge.

text:
    In re Contempt of Jack R. ELROD. In re The Interest of K.N.L.
    No. 83-1269.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.

      Michael Salnick of Kohl, Springer, Springer, Mighdoll & Salnick, Palm Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

Before us is an appeal from a trial judge’s order adjudging a third party to be in indirect criminal contempt. We affirm.

The delinquent minor female in this case persisted in a continuing relationship with an adult male resulting in an order that the child was to have “no contact with [the adult male] and he is to have no contact with her.” The record reveals that ignoring the trial court’s directives has been par for the course in this particular matter and so it was on this occasion because the relationship continued. As a result, the trial court held the adult male to be in indirect criminal contempt and he now appeals claiming that since he was not a party to the proceedings concerning the delinquency of the child, the court had no jurisdiction to find him in contempt.

We begin by agreeing that a court does not have the contempt powers to enforce violations of its orders if they are rendered without jurisdiction over the subject matter or the parties. See State ex rel. Everette v. Petteway, 179 So. 666 (Fla. 1938). Likewise, a person may safely disobey the command of a court even though it has jurisdiction over the subject matter and the parties, if it attempts to enter a particular order that transcends its power or authority. On the other hand, one charged with contempt cannot defend by showing that the order was merely erroneous as distinguished from void. Health Clubs, Inc. v. State ex rel. Eagan, 377 So.2d 28 (Fla. 5th DCA 1979).

In the present case, the trial court clearly was without jurisdiction to order the adult male to refrain from any contact with the delinquent child; therefore, its attempt to enforce the order by adjudicating him in contempt of court for violating would, on that basis, be void. See State v. S.M.G., 313 So.2d 761 (Fla.1975), where the supreme court held that the juvenile court acted beyond its authority by issuing an order directing the mother of a delinquent child to participate in a drug rehabilitation program. In that case, the supreme court reasoned that the juvenile court is one of limited jurisdiction, delineated under Chapter 39, Florida Statutes (1971), which only authorizes the court to order parents of delinquent children to pay the person or institution having custody, reasonable sums for the child’s care, support and maintenance. Thus, the supreme court concluded that the juvenile court lacked the power to order a parent of a delinquent child to do any other act and, therefore, had no authority to punish the mother for contempt if she disobeyed its order.

At first blush, it would appear that the two preceding paragraphs and cases cited therein would require a reversal of the trial judge’s order in the matter now before us, but there is another side to this coin, namely: Can the adult male be held in contempt for interfering with the trial court’s order directing the juvenile to have no contact with him? We answer in the affirmative. This may sound like a distinction without a difference, but under Section 39.13, Florida Statutes (1983), a court can exercise its contempt powers and punish any person interfering with the administration of, or violating any provision of, the juvenile justice act. Thus, the trial court apparently has the authority to hold the adult male in contempt for purposely interfering with the court’s valid order addressed to the juvenile. See Husky v. Safer, 419 So.2d 1158 (Fla. 1st DCA 1982).

We have no doubt that the record supports that the adult male knowingly interfered with the order in this case and it would appear that if the third party has notice of, or knowledge of, the order yet disobeys it and acts in concert with, or aids and abets the juvenile, then he can be punished by contempt. See Annot., 7 A.L.R. 4th 893 (1981). See also Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 3078 n. 32, 61 L.Ed.2d 823 (1979).

AFFIRMED.

HERSEY and HURLEY, JJ., concur.