author: PER CURIAM. ADKINS, BOYD and EHRLICH, JJ„ McDONALD, Justice,

text:
    Carlos Luis ARANGO, Appellant, v. The STATE of Florida, Appellee. Carlos Luis ARANGO, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent.
    Nos. 63562, 63563.
    Supreme Court of Florida.
    Sept. 1, 1983.

      Sharon B. Jacobs and Steven E. Chaykin of Chaykin, Karlan & Jacobs, Coral Gables, for appellant/petitioner.
    Jim Smith, Atty. Gen., and Penny Her-shoff Brill and Carolyn M. Snurkowski, Asst. Attys. Gen., Miami, for appel-lee/respondent.
   PER CURIAM.

Arango was convicted of first-degree murder and sentenced to death in July, 1980. We affirmed the conviction and sentence on direct appeal. Arango v. State, 411 So.2d 172 (Fla.), cert denied, 457 U.S. 1140, 102 S.Ct. 2973, 73 L.Ed.2d 1360 (1982). Arango petitions for a writ of habeas corpus on the ground that he was denied effective assistance of counsel on direct appeal and for a stay of his execution pending final disposition of his petition for writ of habeas corpus. By separate application, he petitions for a stay of execution and extraordinary relief to remedy alleged violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and international law. Arango also appeals the denial of his rule 3.350 motion for post-conviction relief. We have jurisdiction. Art. V, § 3(b)(7) & (9), Fla. Const. We deny the petition for writ of habeas corpus based on ineffective assistance of counsel and the application for extraordinary relief based on violation of international law, affirm the denial of the rule 3.850 motion, and remand for a hearing on the Brady violation.

HABEAS CORPUS

Petitioner urges that he received ineffective assistance of counsel on direct appeal and, in support, cites nine issues which his counsel failed to raise on appeal:

1. Denial of petitioner’s motion to dismiss when state failed to preserve and make available physical evidence which would have proven innocence.
2. Denial of petitioner’s motions for mistrial and to voir dire a juror because the judge and juror smiled during petitioner’s testimony.
3. Refusal of judge to permit introduction of newspaper clippings in mitigation showing that murder victim was notorious Mafia figure.
4. Improper consideration of a non-statutory aggravating factor not supported by evidence.
5. Indictment violated sixth amendment and due process clause of the fourteenth amendment by not including aggravating factors to be considered.
6. The Florida death penalty statute, facially and as applied, violates the fifth, sixth, eighth, and fourteenth amendments by failing to channel jury discretion and by permitting irrelevant factors into the sentencing process by jury and judge.
7. The death sentence violated the sixth, eighth, and fourteenth amendments in that incorrect jury instructions were given and correct jury instructions were refused.
8. Imposition of the death sentence after petitioner rejected a plea bargain offer of life imprisonment violated the sixth, eighth, and fourteenth amendments.
9. Petitioner’s due process right to a fair and impartial jury was violated in that the jury which recommended the death penalty was composed of jurors who favored the death penalty and who had already rejected his trial defenses as to guilt and formed an unfair and prejudicial mindset.

We find that all of petitioner’s arguments are without merit and that only points 1 and 4 require discussion.

Petitioner contends that he was denied effective assistance of counsel because his lawyer failed to appeal the trial court’s denial of his motion to dismiss based on the state’s acknowledged failure to preserve a bloody yellow shirt discovered in petitioner’s apartment following the murder. Petitioner’s position is that the loss of the shirt by the state constituted a Brady violation and had the shirt been presented at trial, it would have corroborated petitioner’s statement that the shirt had been left behind by one of three assailants who petitioner avers murdered the victim.

A Brady violation is normally predicated on the defendant’s not knowing of the withheld evidence. Where defendant is aware of the evidence before or during trial, the appropriate action is a motion to compel discovery or a motion to dismiss. Petitioner became aware of the loss of the shirt during trial and moved to dismiss based on its loss. Although there is a possibility that admission of the shirt might have helped the defense, we are not persuaded that failure to raise the issue on appeal constitutes ineffective assistance of counsel. The facts of the case show that the murder occurred in petitioner’s apartment, that the shirt was in a bathroom sink, and that there was evidence that petitioner had, at least partially, changed his clothes and attempted to clean himself prior to the arrival of the police. Under these circumstances, and in view of other evidence that petitioner committed the murder, the trial court’s denial of his motion to dismiss predicated upon the state’s admitted loss of the shirt is not such that failure to appeal its denial amounts to ineffective counsel.

Petitioner also claims that the trial judge improperly considered a non-statutory aggravating factor which was not supported by any evidence. The basis for this claim is in the trial judge’s finding of fact relative to aggravating circumstances:

(H) That the murder of which the defendant has been convicted was especially heinous, atrocious or cruel. That the record amply shows that the defendant did beat the victim, Jario-Arango Posada, with a blunt instrument many times about his head and body, causing deep lacerations and tremendous bleeding; that the victim was struck severely between his legs, almost severing his sexual organ; that the defendant placed television remote control wire around the victim’s neck choking him and balled up a towel and stuffed it into his throat, blocking his air passages; that after severe beating and strangulation, two gunshot wound were placed in the victim’s head. The record further shows that the defendant acted in a premeditated, senseless and cruel manner that is indicative of the unreasonable, unlawful and violent nature of this defendant in the especially heinous, atrocious murder of Jario-Arango Posada.

Petitioner urges that the last sentence of the quote is a separate non-statutory aggravating circumstance bearing on petitioner’s conduct prior to the murder and that failure to raise this issue on appeal constituted ineffective assistance of counsel. We disagree. The sentence bears on the judge’s finding that the murder was especially heinous, atrocious, or cruel and contains no error. We have previously affirmed the death sentence on direct appeal based on a finding of a single aggravating circumstance, especially heinous, atrocious, or cruel. Arango at 174-75. There was no ineffective assistance of counsel for failure to raise the issue. See Thomas v. State, 421 So.2d 160 (Fla.1982).

APPEAL (3.850 MOTION)

Appellant urges that the trial court erred in denying his motion: (1) in the face of uncontradicted evidence that the state failed to preserve exculpatory evidence; (2) in view of the thirteen substantive issues raised by appellant; and (3) without an evidentiary hearing or without attaching the portion of the files and records conclusively showing that appellant was not entitled to relief.

On point one, we have previously noted that the state’s failure to preserve the allegedly exculpatory evidence, a bloody yellow shirt, was known to appellant during the course of the trial and that the trial court denied appellant’s motion to dismiss based on the state’s loss of the evidence.

On point two, the record reflects that all of the thirteen substantive issues raised by appellant were.either raised, or could have been raised, on appeal. Thus, neither points one nor two present issues appropriate for rule 3.850 challenges. See Raulerson v. State, 420 So.2d 567 (Fla.1982).

Point three merits discussion. On January 3, 1983, appellant’s counsel filed an unverified motion for post-conviction relief. Said motion was scheduled for hearing on March 9, 1983, but was indefinitely postponed at the request of appellate counsel until she could obtain verification by appellant. The delay in obtaining verification was attributed to a language barrier. (Appellant speaks only Spanish.) On April 6, 1983, the Governor signed a warrant directing that appellant be executed during the week of April 29, 1983. Thereafter, appellant’s counsel filed an amendment to the motion for post-conviction relief and ancillary motions seeking a declaration of indi-gency, appointment and payment of a translator, experts (attorneys), investigators, and counsel, a stay of the execution, and an evidentiary hearing. Appellant was transported to Dade County and a hearing scheduled for April 21,1983. On that date, appellant verified his motion for post-conviction relief.

At the rule 3.850 hearing, presided over by the original trial judge, appellant maintained that his ancillary motions should first be granted. The trial judge declined to do so until appellant came forth with preliminary evidence that the claimed ineffective assistance of counsel did not result from trial strategy and tactics. Despite the presence at court of the former, allegedly ineffective, counsel, subpoenaed by the state, and contrary to the suggestion of the state and the court, appellant refused to call former counsel and objected to the state doing so. Appellant’s position was that he was not prepared for an “evidentia-ry” hearing on his motion for post-conviction relief and could not prepare for such hearing unless his ancillary motions were granted. Having reached impasse, the trial judge reviewed the standards for post-conviction relief from Knight v. State, 394 So.2d 997 (Fla.1981), and ruled that appellant had not supported his motion.

We have reviewed the various points raised by appellant in his motion for post-conviction relief, as amended, and agree with the trial judge that the specific omissions or overt acts are either explainable on their face as trial tactics or do not otherwise show ineffective assistance of counsel. Appellant met the first prong of the four-part test set forth in Knight by detailing the specific omission or overt act on which his claim was based, but failed entirely “to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel.” Id. at 1001.

Appellant is apparently laboring under a misapprehension of his burden under Knight and the purpose of a rule 3.850 hearing. When a motion for post-conviction relief is filed, the presiding judge may: (1) determine that the motion itself is legally insufficient and deny the motion without a hearing; (2) determine that the files and records in the case conclusively show that the prisoner is entitled to no relief and deny the motion without a hearing, attaching a copy of the portion of the files and records conclusively showing no entitlement to relief; or (3) determine that a hearing is required for disposition of the motion.

In the instant cause appellant was afforded a hearing but complains that it was illusory and unduly restrictive because of the judge’s refusal to first grant his ancillary motions. Appellant’s counsel refused to put on any preliminary evidence to support either the motion for post-conviction relief or the ancillary motions, despite the fact that both the appellant and the allegedly ineffective former counsel were present and available. We approve the trial judge’s determination that preliminary supporting evidence was necessary before he could realistically consider granting the various ancillary motions. The burden was on the appellant to support his pending motions. We, of course, have no opinion as to what the trial judge might have ruled had appellant or appellant’s former counsel been called to testify, but the judge cannot be faulted for appellant counsel’s tactical decision not to use the hearing to present probative evidence.

We also take this opportunity to comment on what we consider to be the all too frequent and questionable practice of waiting until the eleventh hour to raise or prosecute issues which could have and should have been raised months or years before. The unverified motion for post-conviction relief was filed on January 3, 1983. The four-month delay in verifying the motion and scheduling it for hearing until just prior to the scheduled execution week can be described at best as dilatory and, at worst, as an abuse of process. Essentially, appellant appeared at the April 21, 1983, hearing unprepared to carry the Knight burden, demanding instead that he be granted a stay of execution and the appointment of investigators and experts in the speculative expectation that he might be able at some unknown future date to develop evidence to support the motion for post-conviction relief. We condemn such tactics as unworthy of the legal profession. Spenkelink v. Wainwright, 372 So.2d 927 (Fla.1979) (Alderman, J., concurring specially).

Appellant also urges that the trial judge erred in failing to attach portions of the files and records conclusively showing that the appellant was entitled to no relief. Such attachment is only required if no hearing is held. Petitioner was granted a hearing. The motion was denied after the hearing at which petitioner failed to either meet prong two, or three, of Knight or to support his ancillary motions for a stay of the execution and additional time and resources. We have reviewed the transcript of the hearing and find it comports with due process.

APPLICATION FOR EXTRAORDINARY RELIEF

We see no merit in petitioner’s argument that imposition of the death penalty on him would violate international law.

At trial, petitioner testified that he and the victim were overpowered by three assailants who murdered the victim and fled prior to the arrival of the police. Petitioner now urges that he has recently discovered, on approximately April 23, 1983, that a semi-automatic pistol was found on the day following the murder under the balcony of petitioner’s apartment, and was turned over to the police investigating the murder. Petitioner urges that this evidence was exculpatory and that the state failed to produce this evidence despite his discovery motion which specifically requested, inter alia:

3. Any physical evidence or witness statements which corroborate the Defendant’s statements to Detective Diaz that other Latin males entered the apartment and committed the homicide.

The state acknowledges that it did not make petitioner aware of this evidence but maintains that the pistol was unrelated to this case and, thus, was not disclosed. We express no views on the merits but petitioner has made a prima facie case which requires a hearing. We remand to the trial court for the purpose of conducting a hearing on the claimed Brady violation. Our stay of execution granted on May 2, 1983, remains in effect pending the outcome of the hearing.

It is so ordered.

ALDERMAN, C.J. and SHAW, J., concur.

McDONALD, J., concurs specially with an opinion in which OVERTON, J., concurs.

ADKINS, BOYD and EHRLICH, JJ„

concur to portions of opinion denying habe-as corpus and affirming denial of the 3.850 motion, but dissent to remanding for a hearing on the Brady violation.

McDONALD, Justice,

specially concurring.

I concur in all parts of the opinion except that portion that denies an evidentiary hearing on Arango’s 3.850 motion. In addition to the relief afforded Arango in the opinion, he should be authorized to present evidence of ineffective assistance of counsel at the sentencing proceeding. In addition, I would go somewhat further because I also feel that he is entitled to an evidentiary hearing on the effectiveness of counsel at the sentencing proceeding. To me this did not appear to be an appropriate death sentence case, and, had available nonstatutory mitigating circumstances been presented, others may have reached the same conclusion.

OVERTON, J., concurs.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    James David RAULERSON, Appellant/Petitioner, v. STATE of Florida, Appellee/Respondent.
    Nos. 64181, 64182.
    Supreme Court of Florida.
    Sept. 1, 1983.

      Stephen B. Bright and Russell F. Canan, Atlanta, Ga., for appellant/petitioner.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, for appel-lee/respondent.
   ADKINS, Justice.

We have for review an order denying a motion for post-conviction relief alleging, inter alia, ineffective assistance of counsel. Petitioner also requests that we issue a writ of habeas corpus on the ground that he was denied the effective assistance of counsel on his direct appeal from his sentence of death by the failure of appellate counsel to present to this Court on direct appeal the alleged violation of petitioner’s constitutional right of self-representation. Petitioner has also applied for stay of execution.

The facts found by this Court underlying petitioner’s conviction are set out in Raulerson v. State, 358 So.2d 826 (Fla.), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978), where we affirmed the judgement of guilt and the sentence to death. Petitioner then filed a petition for writ of habeas corpus in the United States District Court, Middle District, seeking to invalidate the death sentence on the ground that a presentence report had been shown to his counsel but had not been shown to petitioner prior to sentencing, contending this was a violation of the rule in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). While this was pending in the federal district court, petitioner, pursuant to Florida Rule of Criminal Procedure 3.850, filed in the trial court a motion to vacate judgment and sentence alleging several constitutional infirmities in the guilt and the sentencing phases of the trial. The trial judge denied the motion to vacate the judgment and sentence.

The federal district court ruled that petitioner be given another sentencing hearing. Raulerson v. Wainwright, 508 F.Supp. 381 (M.D.Fla.1980).

At a status hearing held by the trial judge on July 15, 1980, petitioner made a request to act as co-counsel with his then attorney, David Busch. At that time the court denied his request.

Petitioner then sent the judge a letter on July 18,1980, in which he requested that he be permitted to act as his own counsel. At the resentencing hearing, held on August 11 and 12, 1980, the trial court, relying upon Tait v. State, 362 So.2d 292 (Fla. 4th DCA 1978), revisited its earlier ruling and allowed petitioner to act as co-counsel with Mr. Busch. Petitioner agreed to this. During the resentencing hearing, petitioner did not again request that he be allowed to represent himself without the aid of counsel.

By accepting the court’s offer to act as co-counsel with Mr. Busch, petitioner had an opportunity to participate in the hearing as counsel and the result was the same as if he represented himself. “Standby counsel” may be appointed to help an accused even when he represents himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), Goode v. State, 365 So.2d 381 (Fla.1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).

When the court became aware of State v. Tait, 387 So.2d 338 (Fla.1980), and removed him as co-counsel during the hearing, petitioner made no objection. If petitioner objected to this procedure he should have voiced his objection. The record is clear that he had no hesitancy in “speaking out” on other matters. Under these circumstances we cannot say that petitioner made an unequivocal demand to represent himself.

The alleged violation of Faretta v. California could have been raised on direct appeal of petitioner’s resentencing, but this was not done. Consequently, petitioner has waived this issue.

Subsequently, at a hearing held on February 6, 1981, petitioner, in open court requested to represent himself on appeal. At that point the trial court held an inquiry as directed in Faretta v. California until petitioner abandoned his attempt to represent himself by leaving the courtroom during the middle of that inquiry.

Petitioner appealed from the second sentence of death and this Court affirmed the sentence. Raulerson v. State, 420 So.2d 567 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 3572, 77 L.Ed.2d 1412 (1983).

In his motion for post-conviction relief, petitioner challenges the effectiveness of his counsel at his original sentencing and also the effectiveness of his counsel at re-sentencing. Petitioner was afforded a re-sentencing, so a claim of ineffective assistance of counsel at the original sentence would not lie in this proceeding. However, we find that there is no showing that his counsel at the first sentencing hearing was ineffective.

Petitioner’s counsel at the resen-tencing had been acting as his attorney for approximately five years and reviewed the court record prior to the sentencing proceeding. The first basis upon which his competency is challenged is that the attorney was not properly prepared for the hearing and did not understand its nature or purpose. We considered this issue on the appeal from the resentencing, Raulerson v. State, 420 So.2d at 572, and found that there was sufficient time for adequate investigation and preparation for the resen-tencing hearing. A great deal of mitigating evidence was presented in a coherent manner at the resentencing. Six witnesses were called and testified on petitioner’s behalf. In this proceeding, petitioner proffered affidavits of additional witnesses who (according to him) would have been available to testify in regard to mitigating circumstances. All of the purported testimony as set forth in the affidavit was essentially cumulative of the testimony presented at the resentencing. Stanley v. Zant, 697 F.2d 955 (11th Cir.1983); see also Songer v. State, 419 So.2d 1044 (Fla.1982). There is nothing in the affidavits that was not covered by the witnesses at petitioner’s resentencing. There is no requirement to call any set number of character witnesses, particularly where the testimony of additional character witnesses would merely be cumulative. It appears from the record that counsel for petitioner was both effective and prepared at the resentencing hearing.

The other questions raised in petitioner’s motion for post-conviction relief are without merit and the trial judge was correct in denying the motion without an evidentiary hearing.

Petitioner’s contention in his petition for his writ of habeas corpus that counsel on appeal was ineffective is without merit. His only ground is that appellate counsel allegedly failed to raise the issue of petitioner’s self representation. Parker v. State, 423 So.2d 553 (Fla. 1st DCA 1982), relied upon by petitioner, is distinguishable. In Parker the defendant’s request was held to be unequivocal because counsel for appellant therein filed a concurrent motion stating that Parker desired to represent himself and then in open court informed the trial court of Parker’s desire to represent himself. The court made it clear that to invoke the right the criminal defendant must make an unequivocal request to act as his own lawyer.

Here, in both the court hearings previous to and subsequent to petitioner’s letter, petitioner never requested to solely represent himself. At petitioner’s request he was appointed as co-counsel with Mr. Busch, which is in keeping with the dictates of Faretta v. California.

He made no objection when he was removed. In view of the fact that petitioner never unequivocally asserted his right to self-representation and, in fact, he was given the right to participate in the hearing, counsel representing him on the appeal from the resentencing can hardly be faulted for not raising this issue on appeal.

Petitioner has failed to meet the standard of prejudice under Knight v. State, 394 So.2d 997 (Fla.1981), and is not entitled to habeas corpus relief on the basis of ineffective appellate assistance of counsel.

The petitioner has had the advantage of two sentencing hearings. At the resentenc-ing, the trial judge considered the mitigating evidence adduced at the first sentencing hearing as well as the resentencing hearing. Petitioner’s contentions have been carefully considered and we find no merit in any of them.

The order denying petitioner’s motion for post-conviction relief is affirmed and his petition for writ of habeas corpus is denied. The application for stay of execution is also denied.

A petition for rehearing will not be considered.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald, EHRLICH and SHAW, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Keith K. MATTSON, Respondent.
    No. 63567.
    Supreme Court of Florida.
    Sept. 8, 1983.
    Steve Rushing, Assistant Staff Counsel, Tampa, for The Florida Bar, Complainant.
    Keith K. Mattson, in pro. per.
   PER CURIAM.

Pursuant to Florida Bar Integration Rule, article XI, Rule 11.08, Keith K. Matt-son, a member of The Florida Bar, petitions this Court for leave to resign from The Florida Bar, pending disciplinary proceedings. The Florida Bar objects unless Matt-son agrees that his resignation will be without leave to reapply for readmission to The Florida Bar. Because of the large number, and the seriousness, of the complaints filed against Mattson, the petition to resign is denied unless he agrees in writing that the order accepting his resignation will be without leave to petition for readmission.

It is so ordered.

ADKINS, Acting C.J., and BOYD, MCDONALD, EHRLICH and SHAW, JJ., concur.


text:
    In re INQUIRY CONCERNING A JUDGE EVELYN M. GOBBIE NO. 83-11.
    No. 64052.
    Supreme Court of Florida.
    Sept. 8, 1983.
    John S. Rawls, General Counsel and Mark Hulsey, Chairman, Florida Judicial Qualifications Commission, Tallahassee, for petitioner.
    G. Hunter Gibbons, Sarasota, for respondent.
   PER CURIAM.

Pursuant to article V, section 12, of the Florida Constitution, the Judicial Qualifications Commission has recommended that this Court order the involuntary retirement of Circuit Judge Evelyn M. Gobbie because of a permanent physical disability.

We have determined that the Commission’s proceedings complied with all requirements of the Florida Constitution and rules of the Commission. Judge Gobbie has advised the Court that she does not intend to contest the Commission’s recommendation. Therefore, she has waived the right to respond to this Court’s Order to Show Cause issued August 3, 1983, pursuant to Florida Rule of Appellate Procedure 9.520(b).

We approve the findings of fact and recommendation of the Commission and, accordingly, the Honorable Evelyn M. Gobbie is hereby retired from service as a circuit judge on the date of the filing of this opinion, by reason of a physical disability of a permanent character which interferes with and prevents the performance of her duties. By reason of this Order of Involuntary Retirement there now exists a vacancy in the Circuit Court for the Twelfth Judicial Circuit.

No Petition for Rehearing will be entertained by the Court.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: COWART, Judge.

text:
    In re The ESTATE OF Elizabeth D. SLATER, Deceased. Carrie Alice SLATER, Appellant/Cross-Appellee, v. John David SLATER, Appellee/Cross-Appellant.
    No. 82-1111.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1983.
    Rehearing Denied Aug. 31, 1983.
    Thomas M. Jenks of Law Office of John R. Forbes, P.A., Jacksonville, for appellant/ cross-appellee.
    Geoffrey B. Dobson of Meredith & Dob-son, St. Augustine, for appellee/cross-appel-lant.
   COWART, Judge.

The parties are the son and daughter and only heirs of their mother Elizabeth D. Slater who died intestate in 1966. The son was originally appointed personal representative of the mother’s estate and continued until December 8, 1980, when he was removed and the daughter appointed. During the 14 odd years that the son was the personal representative many partial distributions of both money and real property were made to both the son and the daughter. A final accounting was amended by the court and approved as amended. After eliminating from consideration certain property which is currently the subject of other pending litigation between the parties apparently the court found that during the administration of the estate the son received partial distributions in excess of that received by the daughter to the extent of cash and personal property in the amount of $37,-262.02 and real property to the extent of $10,900 according to values on some early appraisal. At the time of final distribution there was cash in the amount of $47,507.17 less $38,498.37 for final attorney’s fees and expenses leaving a net of $9,008.80 and real estate of the value of $345,500, according to a more recent valuation, for total assets of $354,508.80 available for final distribution. The daughter proposed to make a final distribution of the net assets ($354,508.80 as adjusted by the court) by taking the $10,900 difference in the partial distribution of real estate, dividing it into halves and then taking the daughter’s half of $5,450 and adjusting it by a 15 per cent straight line appreciation figure to become $81,900 and by adding that sum to one-half of the cash disparity of $37,262.02, being $18,631.01, to obtain an adjustment of $100,531.01 which adjustment would be subtracted from the son’s half of the total net assets of $354,-508.80, being $177,254.40 to leave him $76,-723.39 and added to the daughter’s $177,-254.40 half of the total net assets available for final distribution to give her $277,-785.41. The trial court accepted this concept to the extent that it made a ratio of the proposed disbursement as follows: the daughter’s $277,785.41 divided by $354,-508.80 equals .7836 and the son’s $76,723.39 divided by $354,508.80 equals .2164 and applied those ratios to the cash of $9,008.80 ordering a cash disbursement to the daughter of .7836 times $9,008.80 or $7,059.30 and to the son of .2164 times $9,008.80 or $1,949.50. However the trial court then ruled that because the land descended equally to the two heirs as tenants in common at the mother’s death intestate the court could not make any adjustment for the unequal partial distribution of the real estate and that the title to all of the remaining real property was owned equally by the two heirs. The daughter appeals. We reverse.

The ratio distribution proposed by the daughter related to both the cash and the real property. In view of the fact that at the time of final distribution the son had already received partial distributions of $39,162.06 in excess of those received by the daughter, it was error for the trial judge to order equal distribution of the real property and to also allow the son the $1,949.50 distribution of cash. The distribution ordered still left the son with a total distribution of $34,052.26 more than the total distribution to the daughter.

The title to real property owned by an intestate decedent descends at death directly to the heirs subject to the administration of the estate. See Ray v. Rotella, 425 So.2d 94 (Fla. 5th DCA 1982). However, where, as here, unequal partial distributions are made to equal heirs during the administration of the intestate estate, the personal representative has the duty, and the probate court has the authority and jurisdiction, at final distribution, to settle and distribute the estate of the decedent in accordance with the applicable law governing the descent and distribution of intestate estates. See §§ 733.602(1) and 733.608(3), Fla.Stat. (1981). Under section 732.103(1), Florida Statutes (1981), the son and daughter in this case inherited equal shares in their mother’s estate. There are several ways that the inequality resulting from the unequal partial distributions can be eliminated. To the extent that the son obtained partial distributions in excess of that of the daughter, the excess distributions to the son could be treated as improperly distributed and the son be required to return to the estate the property improperly received and its income since distribution, or its value plus income and gain, under the authority of section 733.812, Florida Statutes (1981). If, because of the unequal partial distributions it is now not practicable to distribute undivided interests in the residue of the estate property, such property of the estate as may be necessary can be converted to cash for the necessary unequal final distribution needed to equalize the total shares of the heirs. See § 733.810(l)(b), Fla.Stat. (1981).

The daughter is not entitled to an appreciation adjustment on the excess partial distributions of real estate received by the son. She should have acted long ago to have kept the partial distributions substantially equal and to close the estate and have a final distribution. The son should either pay the daughter directly from his own funds one-half of the $39,162.06 of excess distributions he has received with legal interest thereon from receipt of the excessive distributions to the present, or sufficient assets of the estate should be sold so that an additional $39,162.06 plus legal interest thereon can be distributed to the daughter in order to equalize their partial distributions from the estate and then the remaining assets of the estate distributed equally.

As it relates to distribution of both the cash and the real property the appealed order of January 9, 1982, is reversed and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . This figure is based on Schedule E of the final accounting which, as amended, shows the sum of $18,631.01 as one-half of the excess distributions other than real property to John David Slater. When doubled, this gives the sum of $37,262.02 as the total amount of excess distributions of cash and personal property to John David Slater. The $18,631.01 figure on Schedule E was obtained as follows:
      (a) Cash $ 9,016.64
      (b) Furniture $ 500.00
      (c) Stock $ 114.37
      (d) Rent $ 9,000.00
      Subtotal $18,631.01
      The following is a comparison of partial distributions to the son, Schedule D-2, with partial distributions to the daughter, Schedule D-l, using the correct figures:
      PARTIAL DISTRIBUTIONS JOHN SLATER CARRIE SLATER EXCESS TO JOHN SLATER
      Cash $26,450.77 $ 8,417.49 $18,033.28
      Personal Property
      Furniture $ 1,000.00 $ 1,000.00
      Stock $ 228.78 $ 228.78
      Rent from Real Property $ 9,000.00 $ 9,000.00
      SUBTOTAL $28,262.06
      Real Property $31,200.00 $20,300.00 $10,900.00
      Correct TOTAL of excess distributions to John Slater $39,162.06

      . Actually, the final judgment appears to divide 354,508.80 by 76,097.60 to obtain the figure .2164 but this is assumed to be a typographical error.

      . See n.l, supra.


author: SHARP, Judge.

text:
    RINKER MATERIALS CORPORATION, Petitioner, v. CITY OF PALM BAY BOARD OF, ADJUSTMENT, et al., etc., Respondents. CITY OF PALM BAY BOARD OF ADJUSTMENT, et al., Petitioners, v. Honorable Clarence T. JOHNSON, Jr., Circuit Judge, Respondent.
    Nos. 83-259, 83-495.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1983.
    Rehearing Denied Oct. 4, 1983.

      Donald J. Beuttenmuller, Jr., of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for Rinker Materials Corporation and Honorable Clarence T. Johnson, Jr.
    William H. Adams, III, Jacksonville, and Nicholas F. Tsamoutales, Palm Bay, for City of Palm Bay.
   SHARP, Judge.

The Petition by the City of Palm Bay for Writ of Prohibition is denied. Boalt v. City Commissioners, City of Miami, 408 So.2d 1080 (Fla. 3d DCA 1982).

The Petition by Rinker Materials Corporation for Writ of Certiorari is also denied.

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


author: DENNIS, Justice.

text:
    CELLES ENTERPRISES v. PEOPLES BANK AND TRUST COMPANY.
    No. 83-C-0481.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 7, 1983.
    Daniel T. Murchison, William P. Crews, Jr., Watson, Murchison, Crews, Arthur & Corkern, Natchitoches, for applicant.
    Michael H. Rubin, Sanders, Downing, Kean & Cazedessus, Baton Rouge, Edwin Dunahoe, Thomas, Dunahoe & Gregory, Natchitoches, for respondents.
   DENNIS, Justice.

This case involves a suit for damages arising from the breach of an alleged oral contract by a bank to refrain from the enforcement of a debt secured by a mortgage on an immovable. After a judge trial, the district court awarded damages to plaintiffs, finding that the creditor bank had wrongfully foreclosed on the mortgage despite its oral promise to plaintiffs, for valid consideration, to forbear for three years, and awarded damages. The court of appeal, 425 So.2d 853, reversed holding that “[jjust as the promise to pay the debt of a third party is required to be in writing [by C.C. art. 2278(3)], so is a contract to forbear, relative thereto, required to be in writing.”

We granted writs because the court of appeal’s decision appears to have been based on a misinterpretation of the code. Article 2278(3) provides that “[pjarol evidence shall not be received .. . [t]o prove any promise to pay the debt of a third person.” It does not prohibit the introduction of parol evidence to prove a creditor’s promise to refrain from the enforcement of an obligation.

However, upon reviewing the entire record, including both documentary and pa-rol evidence, we conclude that the evidence does not justify a finding that the creditor bank promised to refrain from enforcing the obligation for three years as contended by the plaintiffs. Accordingly, we will affirm the judgment of the court of appeal, but only because the result it reaches is correct.

During 1978 and 1979, the defendant, Peoples Bank and Trust Company, loaned Harold L. McCain, Jr. and Frank A. Wink-ler sums totaling approximately $400,000 to build a restaurant on Sibley Lake in Natchi-toches. The loans were secured by a mortgage on the property. After the restaurant opened, McCain bought out Winkler and became sole owner of the business. By October 1980, McCain’s business was faltering and he was seriously delinquent in his obligations to the bank.

One of the plaintiffs, Celles Enterprises, Inc., — 1980, a limited partnership, leased the restaurant from McCain in November, 1980. The other plaintiffs herein are members of the limited partnership. Celles Enterprises operated the restaurant and paid ten percent of its sales to the bank in November and December as required by the terms of the lease. These payments were insufficient, however, to make the payments required by McCain’s obligation. When it became known that the bank intended to foreclose, a representative of Celles Enterprises met with two bank officers on February 11,1981. After this meeting, Celles Enterprises paid approximately $17,000, which was applied to McCain’s indebtedness, and the bank did not commence its contemplated foreclosure proceedings.

After making a $8920.53 payment on McCain’s debt in March, 1981, Celles Enterprises contracted for extensive renovations to the restaurant. In April, Celles Enterprises tendered another payment, but it was returned by the bank. The bank invited Celles Enterprises’ representatives to a meeting and informed them that it had learned McCain was insolvent and planned to take bankruptcy. The bank offered to let Celles Enterprises assume McCain’s indebtedness, but at a higher interest rate, and offered to loan the partnership the necessary capital if its partners personally signed the note and solidarity obligated themselves. Celles Enterprises and its partners declined the offer and the bank foreclosed.

After an unsuccessful attempt to enjoin the bank’s executory proceedings, Celles Enterprises and its partners brought this action for damages alleging that the bank breached its agreement with Celles to forbear for three years so long as the partnership made timely scheduled payments on McCain’s notes. Following a judge trial, the district court awarded damages and attorney’s fees to Celles Enterprises and its individual partners in the total amount of $181,844.69. On appeal, the court of appeal reversed.

The court of appeal’s judgment was correct in result because the trial court fell into manifest error when it found that the bank agreed or promised to refrain from the enforcement of its rights against McCain for a fixed period if Celles made certain interim payments. The record reflects that no one testified that the bank officials ever orally expressed such a commitment and there is no written evidence containing such a promise.

The bank officers consistently denied having made any such agreement. George Celles, III, the only partner who discussed the matter with them, did not testify that the officers made such a commitment in their conversations. Instead, Celles said that, in reply to his request for a statement of the partnership’s position in the event it continued to make payments on the McCain notes, he received a letter in reply from the bank which stated:

Dear George:
Bea had requested an amortization schedule for the notes of McCain-Winkler on Captain’s Galley. I am unable to give you this information because they are not on a fixed interest rate. We approved this loan as a ‘Renegotiated Mortgage’ with the rate to be set every five years. However, I am able to give you the following information concerning these notes:
Note No. BR #27795 Balance $27,332.48 Rate: 14% Due 3-15-81 Pmt. $434.76
Note No. BR #26184 Balance $29,780.03 Rate: 12% Due 3-15-81 Pmt. $485.77
Note No. BR #27794 Balance $338,020.87 Rate: 9.5% Due 3-15-81 Pmt. $3,000.00
George, these monthly payments include interest. The rate will be reviewed in January, 1984. Until that date the rate is fixed as shown above.
If you have any questions concerning this matter, or if I can be of further assistance to you, please do not hesitate to let me know.
With kindest personal regards, I remain
Sincerely,
s/ Gary S. DeBlieux

Celles testified that he interpreted this letter, which was introduced into evidence, to state that the bank would not foreclose on the McCain loan if Cedes Enterprises made payments satisfactorily until January of 1984. Aside from this letter, which cannot be reasonably so construed, Cedes did not testify to any specific communication from the bank by which it committed itself to a prolonged forbearance. Additionally, Cedes’ testimony that the letter was sent in response to his request for a statement of the partnership’s position was inconsistent with the testimony of the other witnesses. One of the bank officers recalled that Cedes asked only for á letter stating that his guaranty of a partnership loan in connection with the McCain matter would not jeopardize his credit with the bank in relation to his other businesses. Cedes’ office manager and comptroller, Bea Monk, testified that she reminded a bank officer to send an unspecified letter earlier requested by Cedes, and that she also requested an amortization schedule of the McCain loan. The substance of the letter introduced into evidence indicates that it does nothing more than comply with Bea Monk’s own request for loan information by detailing the payment schedule on McCain’s notes through January, 1984. Consequently, the substance of the letter introduced, and the absence of any other letter between these parties in the record tends to contradict both Cedes’ interpretation of the letter and his version of the events preceding his receipt of it.

Although the record indicates that the bank in fact refrained from the enforcement of McCain’s obligation because of Cedes Enterprises’ payments from February 11, 1981 until the bank learned of McCain’s impending bankruptcy, the evidence in this case does not provide a reasonable basis for finding that the bank promised or led Cedes to believe that it would forbear until January 1984, or for an extended period, conditioned exclusively on Cedes Enterprises’ continued payments.

For the reasons assigned, the judgment of the court of appeal is affirmed.

AFFIRMED.

WATSON, J., concurs.


author: CALOGERO, Justice. BLANCHE, Justice

text:
    Derry Lynn BEARDEN, Individually, and as Natural Tutrix of her minor son Ricky Bearden and Polly Christian v. Joseph RUCKER, Cavalier Insurance Company and Gulf Insurance Company.
    No. 82-C-2506.
    Supreme Court of Louisiana.
    Sept. 2, 1983.

      Roy Maughan, Elliott W. Atkinson, Mau-ghan & Atkinson, Ltd., Baton Rouge, for applicants.
    John Swanner, Seale, Smith & Phelps, Henry D. Salassi, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for respondents.
   CALOGERO, Justice.

A married woman living separate and apart from her husband, and the son and mother with whom the woman shared an apartment, were injured in an automobile accident while guest passengers in a non-owned automobile. The question presented in this review is whether there was applicable, at the time of the accident, the uninsured motorist coverage provided in a “Family Combination Automobile Policy” issued in the name of the woman’s husband, on a community owned vehicle which, to the knowledge of the insurance agent who issued the policy,- was in the woman’s exclusive custody for her use.

Derry Lynn Bearden, her son Ricky Bear-den, and her mother Polly Christian, were injured in an automobile accident on September 25, 1976. The three were passengers in an automobile owned by Exxon Corporation and driven by its employee, David Peters. These plaintiffs were injured when one of the defendants in the lawsuit, one Joseph Rucker, failed to stop, notwithstanding that he was confronted by a stop sign and flashing red light. Rucker’s vehicle struck the vehicle in which the plaintiffs were riding. Plaintiffs filed this suit to recover damages for the injuries they sustained in the accident. Named as defendants in the suit, besides Rucker, were Cavalier Insurance Company (Rucker’s insurer), the host driver David Peters, Fireman’s Fund Insurance Company (as Peters’ personal insurer and also as Exxon’s insurer), and Gulf Insurance Company (the uninsured motorist carrier on the policy issued in the name of Lloyd Bearden, the husband of Derry Lynn Bearden).

After trial on the merits, the district court made the following findings. The court held that the accident was caused solely by the negligence of Rucker and that, consequently, both Rucker and his liability insurer, Cavalier, were liable to plaintiffs. Since the host driver Peters was found not to have been at fault, the trial court held that neither Peters’ personal liability insurer nor Exxon’s liability insurer were liable to plaintiffs. However, the trial court held that plaintiffs were covered under the uninsured motorist provisions of Peters’ personal insurance policy, upon finding that under that policy and its definitions the Exxon vehicle was an “insured automobile”. Finally, the trial court held that plaintiffs were not covered under the uninsured motorist provisions of the Gulf policy issued to Lloyd Bearden, as plaintiffs were not “residents of [his] household” at the time of the accident.

Damages were calculated in favor of plaintiffs collectively at $71,763.35 against defendants Rucker, Cavalier and Fireman’s (the latter insurance company as Peters’ UM insurer), but only to the extent of the insurers’ policy limits (Cavalier’s $10,000.00 liability limit and Fireman’s $20,000.00 uninsured limits). However, upon defendant Rucker’s filing a motion for a new trial (apparently upon receipt of reasons but pri- or to entry of any judgment) in which he sought a reduction in damages because of his inability to pay the part of the damages not covered by insurance, the trial court reduced the originally calculated damages of $71,763.35 and awarded judgments totaling $35,000.00 (only $30,000.00 of which was covered by the defendant insurers’ policy limits). From this judgment, plaintiffs appealed.

On appeal plaintiffs argued that the trial court erred in not finding Peters negligent and in thus not rendering judgment against Fireman’s as Peters’ personal liability insurer. They also argued that the court erred in failing to find that the plaintiffs were covered by the uninsured motorist policy issued by Gulf to Lloyd Bearden. And finally, they argued that the trial court erred in reducing the judgment because of defendant Rucker’s insolvency. Rucker answered the appeal requesting a further reduction in the award because of his impecunious circumstances. The Court of Appeal, 418 So.2d 713, found no merit in any of the parties’ contentions and affirmed the trial court judgment.

As earlier indicated, we granted plaintiffs’ writ application primarily to consider whether Lloyd Bearden’s wife, Derry Lynn, Derry Lynn’s mother, Polly Christian, and the couple’s son, Ricky Bearden, were covered by the uninsured motorist provisions of the Gulf policy issued in the name of Lloyd Bearden.

Lloyd Bearden and Derry Lynn Bearden were married sometime prior to 1962. They lived together as man and wife for a number of years before 1976 and had three children. The oldest child was 14 years of age at the time of the accident (September, 1976) and the youngest was 9 years of age at that time. Prior to 1976 they were living together in a home which they purchased on West Darryl Parkway in Baton Rouge, Louisiana. They owned two automobiles at that time, one of which was a 1969 Chevrolet Impala. Both vehicles were listed on a “Family Combination Automobile Policy” with Gulf, issued in the name of Lloyd Benton Bearden. In January of 1976, because of marital difficulties, Ms. Bearden moved out of the marital domicile and into an apartment on Sharp Road in Baton Rouge. Her youngest son, Ricky, moved with her, and her mother also moved into the apartment with the two of them. Ms. Bearden took the 1969 Impala with her when she moved, and was thereafter the sole custodian and user of the car. On or about April 27, 1976, the Gulf policy came up for renewal. It was renewed then, with the 1969 Impala listed on the policy. This was done with the knowledge on the part of Gulf’s agent that the car was in Ms. Bear-den’s possession and that she was not then living with her husband, Mr. Bearden.

Six weeks later on June 9, 1976, upon Mr. Bearden’s petition, a judgment of separation from bed and board was obtained. Custody of the youngest child, Ricky, was granted to Ms. Bearden and custody of the two older children was granted to Mr. Bear-den. No community property settlement was made. The parties continued to owe debts and own property jointly. The couple continued to live separately.

Thereafter, on September 25, 1976, the accident which gave rise to this lawsuit occurred.

Whether these plaintiffs may recover from Gulf is governed by Ms. Bearden’s status under the policy, that is, whether she qualifies as a “named insured” within the meaning of the policy definition.

In order to decide this fundamental question, it is necessary for us to examine certain terms in the policy. We do so “in accordance with the settled principle that ambiguity in an instrument is resolved against the draftsman.” Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981), On Rehearing.

The policy issued to Lloyd Bearden contains the following provision:

PART IV — FAMILY PROTECTION COVERAGE
Coverage J — Family Protection (Damages for Bodily Injury): To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration. (Emphasis provided.)

The term “insured” is defined in this Part of the policy as follows:

“insured” means:
(a) the named insured and any relative;
(b) any other person while occupying an insured automobile; and
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this Part applies sustained by an insured under (a) or (b) above. (Emphasis provided.)

A “named insured” is defined as “the individual named in Item 1 of the declarations [in this case Lloyd Bearden] and also includes his spouse, if a resident of the same household.”

“Relative” is defined in the policy as “a relative of the named insured who is a resident of the same household.”

Thus, if it is determined that Ms. Bearden was, at the time of the accident, “a resident of the same household” as her husband, as that phrase is used in the policy, she is a “named insured” under the policy and covered by the uninsured motorist provisions therein.

The phrase “resident of the same household,” as used in insurance policies, has been variously described by the courts of this state as having “no absolute or precise meaning,” Bond v. Commercial Union Assur. Co., supra, and as having “no specific meaning as to place or time when a party would qualify for insurance coverage ... [and], therefore, uncertain and equivocal in phraseology.” Hobbs v. Fireman’s Fund Am. Ins. Companies, 339 So.2d 28 (La.App. 3rd Cir.), writs refused 341 So.2d 896 (La.1977). The courts of other jurisdictions have found the phrase to be “an ambiguous, elastic, or relative” one. Mathis v. Employers’ Fire Ins. Co., 399 So.2d 273 (Ala.1981).

In Mathis v. Employers’ Fire Ins. Co., supra, the court observed:

The word “resident” is in common usage, and many definitions of it are to be found in the decisions. It is, nevertheless, difficult to give an exact, or even a satisfactory, definition, for the term is flexible, elastic, slippery and somewhat ambiguous.
“Resident” has no technical meaning, and no fixed meaning applicable to all cases, but rather it has many meanings, and is used in different and various senses, and it has received various interpretations by the courts. Generally the construction or signification of the term is governed by the connection in which it is used, and depends on the context, the subject matter, and the object, purpose, or result designed to be accomplished by its use, and its meaning is to be determined from the facts and circumstances taken together in each particular case.

This Court has not heretofore considered the meaning, in a “Family Combination Automobile Policy”, of the phrase “resident of the same household” as it pertains to a spouse, although the matter has been considered in our lower courts and in other jurisdictions.

In Hobbs v. Fireman’s Fund Am. Ins. Companies, supra, the Third Circuit Court of Appeal made the following determinations in holding that the wife was a resident of her husband’s household and thus covered under the policy, notwithstanding that she had left the marital domicile in Mississippi and established a domicile in Louisiana:

Although a person may have only one domicile, that person may have several residences. Manuel v. American Employers Insurance Co., 228 So.2d 321 (La.App. 3 Cir.1969); LaFleur v. Seaboard Fire & Marine Insurance Co., 296 So.2d 860 (La. App. 3 Cir.1974). To maintain a residence a person needs only a place or premises which entitles him to return at his convenience without having to request permission of someone else. Hall v. Godchaux, 149 La. 733, 90 So. 145 (1921); Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La.App. 3 Cir. 1976).

The court further noted that “coverage should not be based upon the serenity, or lack thereof, in a marriage.”

In Southern Farm Bureau Casualty Insurance Co. v. Kimball, 552 S.W.2d 207 (Tex.Civ.App.1977), the Court, after a thorough review of cases from several jurisdictions, concluded:

The controlling test of whether persons are residents of the same household at a particular time, within the meaning of the policy in question is not solely whether they are then residing together under one roof. The real test is whether the absence of the party of interest from the household of the alleged insured is intended to be permanent or only temporary — i.e., whether there is physical absence coupled with an intent not to return. In American States Ins. Co. v. Walker, 26 Utah 2d 161, 486 P.2d 1042, 1044 (1971), the court said that the residence in question “emphasizes membership in a group rather than an attachment to a building”; and that it is “a matter of intention and choice” rather than one of location. Under proper facts, it has been held that separations from the common roof by college students, by members of the military services, and by spouses (albeit with divorce actions pending) did not, per se, destroy their household membership with their families and spouses. See Crossett v. St. Louis Fire and Marine Ins. Co., 289 Ala. 598, 269 So.2d 869 (1972); Manuel v. American Employers Insurance Company, 228 So. 321 (La.App.1939); Giese v. Karstedt, 30 Wis.2d 630, 141 N.W.2d 886 (1966); Allstate Ins. Co. v. Jahrling, 12 N.Y.2d 943, 238 N.Y.S.2d 517, 188 N.E.2d 791 (1963); Doern v. Crawford, 36 Wis.2d 470, 153 N.W.2d 581 (1967); American Casualty Co. v. Harleysville Insurance, 238 Md. 322, 208 A.2d 597 (1965); Lumbermen’s Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d 104 (Alaska Sup., 1963). Related annotations are found in 173 A.L.R. 901, 1 A.L.R.2d 557, 78 A.L.R.2d 1395, and 46 A.L.R.3d 1024.

Similarly, in Hawaiian Insurance & Guaranty Co. v. Federated American Insurance Co., 13 Wash.App. 7, 534 P.2d 48 (1975) the court observed:

From the cases which have dealt specifically with coverage during the period that one spouse has separated from the other, the basic inquiry is whether the separation was intended to be permanent without the prospect of reunion or temporary with reconciliation a possibility.

We are of a similar view, that the question of whether a spouse is a “resident of the same household” as the spouse named in the policy, in the context of whether the former remains covered under the family automobile policy issued to the named spouse, is not solely dependent upon whether the couple is living under the same roof. Rather, the emphasis is upon whether there remains “ ‘membership in a group rather than an attachment to a building;’ and it is ‘a matter of intention and choice’ rather than one of location.” Southern Farm Bureau Casualty Insurance Co. v. Kimball, supra.

The Beardens had been physically separated for approximately nine months at the time of the accident. A legal separation had been secured by Mr. Bearden. Ms. Bearden testified at trial that she still considered reconciliation a possibility. There was no division of the community property at any time prior to the accident. Thus, ■ there remained joint ownership of all the community assets, including the family home and the automobile insured under the Gulf policy and used by Ms. Bearden and in her possession. The Gulf policy was renewed after the parties separated but before the judgment of legal separation. At the time of renewal, the agent was fully informed of the fact that Ms. Bearden had possession of the 1969 Impala and that Ms. Bearden was not then living in the family home with Mr. Bearden. The policy was renewed, with the inclusion of the Impala, and premiums were paid for that coverage. Ms. Bearden retained keys to the family home where she visited several times a week, and occasionally had meals with her children. She testified that she was free to come to and go from the family home as she pleased. She also still had at least some of her belongings at the family home, although it is from the record not clear just how much. Furthermore, at the time of the trial, in April of 1980, some four years after the separation, the parties were still not divorced.

On the other hand, there was some evidence of an intent that the separation be permanent. The Beardens were legally separated at the time of the accident. Ms. Bearden had changed her address with the post office. She had moved a great deal of her belongings to her apartment. Although Ms. Bearden testified that she thought reconciliation was a possibility, Mr. Bearden testified that he thought it was not.

These facts must be considered in light of our matrimonial regimes laws and the public policy underlying them which favors preserving the marriage. The bonds of matrimony are not dissolved by a judgment of separation. La.C.C. art. 136. Only the community of acquets and gains is terminated. The parties still owe each other fidelity and the duty of support and assistance. Boucvalt v. Boucvalt, 235 La. 421, 104 So.2d 157 (1958). Reconciliation subsequent to a judgment of separation from bed and board vitiates all effects of the judgment except termination of the community. La.C.C. arts. 152, 155. Efferson v. Efferson, 394 So.2d 1294 (La.App.Cir.), writs refused, 397 So.2d 1358 (La.1981).

Upon considering the factual circumstances of the instant case in light of the legal principles applicable, we conclude that Ms. Bearden was “a resident of the household” of her husband within the meaning of that phrase as used in Gulf Insurance Company’s Family Combination Automobile Policy.

Therefore, according to the definitions provided in the Gulf policy, Ms. Bearden qualifies as a “named insured,” for she is the spouse of “the individual named in Item 1 of the declarations” and “a resident of the same household.” She is covered under the uninsured motorist provisions of the policy.

Ricky Bearden and Polly Christian are also covered by the uninsured motorist provisions of the Gulf policy. By the policy provisions, uninsured motorist coverage is provided for relatives of the named insured who are residents of the named insured’s household. Since Ms. Bearden meets the definition provided in the policy for a named insured, her son Ricky and her mother Polly Christian, both of whom resided with Ms. Bearden, are, therefore, covered under the policy.

Therefore, we conclude that the lower courts erred in finding that the three plaintiffs were not covered under the uninsured motorist provisions of the Gulf policy. The Gulf policy limits should have been considered in determining the appropriate damage award. Plaintiffs’ argument that the trial court erred in reducing his original calculation of damages to $35,000.00 because of Rucker’s impecunious circumstances has merit in view of our inclusion of Gulf as a liable and solvent defendant.

Plaintiffs also argue that the outset determination by the trial judge that plaintiffs’ damages collectively warranted only $71,763.35 (prior to the reduction based on Rucker’s inability to pay) was wrong, the overall damages being inadequate. We make no finding in that regard inasmuch as the only judgment rendered in the district court was for a total sum of $35,000.00, which in this opinion we have upset.

While it should be a simple matter to add Gulf’s policy limits to those available to cover plaintiffs’ damages, and then to make the appropriate awards, that task has been made extremely difficult if not impossible at this juncture because of several factors. We therefore prefer to remand the case to the district court for the rendition of the appropriate judgment with due consideration of the respective policies, their coverages, limits, and other legally appropriate provisions, and in accordance with the determinations made herein.

Decree

For the foregoing reasons and consistent therewith, the judgments of the lower courts are reversed in part, affirmed in part and the case is remanded to the trial court to fix and apportion such damages, and against such parties, as are legally appropriate.

REVERSED IN PART; AFFIRMED IN PART; REMANDED.

LEMMON, J., dissents.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

Contracts of insurance, like all other contracts, are to be given a genuine construction; their terms, when they are clear and unambiguous, ought to be construed so as to reflect the accepted usage of the component words. La.C.C. art. 1945, 1946. As this Court stated in Commercial Union Insurance Co. v. Advance Coating, 351 So.2d 1183, 1185 (La.1977):

The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists ...

In the absence of statutory provisions to the contrary, insurance companies have the same right as individuals to limit their liability, and to impose whatever conditions they please upon their obligation not inconsistent with public policy.

The instant case involves a clause in an insurance contract which, on its face, appears unambiguous. Simply stated, the clause limits coverage to the named insured (plaintiff’s husband) and “any relative”. Any relative is subsequently defined in the contract as “a relative of the named insured who is a resident of the same household.” Resident, in its most generally accepted meaning, suggests a factual place of abode — a place where a party actually dwells. Black’s Law Dictionary, Webster’s Third New International Dictionary.. This interpretation of the word “residence” is further reinforced by the inclusion of the additional language “of the same household.” Clearly, the parties to the contract of insurance intended that coverage extend only to the insured and the family members who lived with him. At the time of the accident, plaintiff did not live with her husband. To the contrary, she had been separated from her husband for nine months, and had not lived in her husband’s home during that time. Under no reasonable construction of the term could plaintiff be considered a resident under the policy.

The majority suggests that, before attempting to define the scope of the term resident, reference must be made to principles of Louisiana law which accord a preference in favor of the existence of the family. Invocation of this somewhat amorphous preference seems particularly inappropriate given the facts of this case. The majority would hold that public policy that encourages the existence of family relationships should entitle a spouse judicially separated from her husband for nine months, to recover under her husband’s insurance policy, when the plain language of the policy would otherwise not entitle her to do so. In my opinion, the policy considerations employed by the majority are inapplicable to a determination of residence and ought not to be used to disturb the intent of the parties to a private contract of insurance.

Therefore, I respectfully dissent.

      . Exxon was originally named as a defendant in the lawsuit but was dismissed from the suit upon a Motion for Summary Judgment.

      . Exxon’s insurer was not exposed for UM because uninsured motorist coverage was expressly rejected by Exxon in August of 1974 upon issuance of that policy.

      . Damages were calculated in favor of the individual plaintiffs as follows:
      Derry Lynn Bearden $55,759.70
      Ricky Bearden $ 2,785.90
      Polly Christian $13,217.75

      . Williams v. McManus, 38 La.Ann. 161 (1886); Loyacano v. Jurgens, 50 La.Ann. 441, 23 So. 717 (1898); Suhor v. Gusse, 388 So.2d 755 (La.1980).

      . Damages were awarded individually as follows:
      Derry Lynn Bearden $27,195.00
      Ricky Bearden $ 1,358.00
      Polly Christian $ 6,447.00

      . The Court of Appeal did amend the judgment by deducting $380.00 from the part of the judgment against Cavalier, because that sum represented an amount Cavalier had previously paid to another passenger in the Peters automobile.

      . The trial court found that David Peters was not negligent. The Court of Appeals reviewed that finding and held that the evidence in the record supported the trial court determination. Finding no manifest error in the trial court judgment in this regard, the Court of Appeal affirmed the lower court findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). We likewise find no error in the trial court’s findings concerning Peters’ negligence and affirm that part of the judgment.

      . Other jurisdictions have found relevant the parties’ later actions in determining whether the separation was intended to be temporary or permanent. In Zurich Ins. Co. v. Monarch Ins. Co. of Ohio, 247 Md. 3, 230 A.2d 330 (1967), the court found the parties subsequent reconciliation relevant in establishing the wife’s intention that the separation was temporary. And in Neidhoefer v. Automobile Ins. Co., 182 F.2d 269 (7th Cir.1950), the court found the parties’ subsequent divorce relevant in establishing the wife’s intention that the separation was permanent.

      . Nor has the Court of Appeal reviewed a $71,-000.00 sum of awards for its adequacy.

      . Among the problems involved in a determination of quantum at this stage, and based on this record, are the following. 1) Because Gulf, is herein, for the first time being held liable to plaintiffs, the matter of the amount of Gulfs policy exposure has not heretofore been briefed or argued. 2) The judgment rendered, assessing plaintiffs’ damages (collectively) at $35,-000.00 has been reversed. The lower court’s belief that it was bound to that award because of considerations of Rucker’s inability to pay is now rendered incorrect in view of Gulf’s liability. 3) It appears that the apportionment of the damage award against Cavalier and Fireman’s (final judgments?) was erroneous since it required both to pay a sum to Derry Lynn Bear-den in excess of their single claimant policy limits. Cavalier’s 5/10 liability limits probably expose them to no more than $5,000.00 to any one claimant. Yet Ms. Bearden was awarded $7,770.00 against Cavalier. Similarly, against Fireman’s and notwithstanding Fireman’s 10/20 UM limits, Ms. Bearden was awarded $15,540.00. 4) A reduction of Cavalier’s liability by $380.00 must be incorporated in the distribution of its policy limits among the three plaintiffs since that sum, as found by the Court of Appeal and affirmed here, has already been paid by Cavalier to another passenger in the automobile. 5) And finally, in the present record, there is an endorsement attached to the Gulf policy which seems to provide that Gulf will pay its UM policy limits irrespective of coverage or recovery under other policies. The meaning and applicability of this clause has not yet been considered and there does not appear in the present record what the effective dates of that endorsement were.

      . Emphasis added.


author:
MARCUS, Justice. CALOGERO, Justice,
      LEMMON, Justice,

text:
    STATE of Louisiana v. Vincent J. LAPRIME.
    No. 82-KA-1021.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 7, 1983.
    Concurring Opinion Oct. 17, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John F. Rowley, Dist. Atty., Wayne McDougall, Abbott Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    A. Scott Tillery, Tillery & Potts, Chal-mette, for defendant-appellant.
   MARCUS, Justice.

Vincent J. Laprime was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury, defendant was found guilty as charged and was sentenced to serve eight years at hard labor. On appeal, defendant relies on ten assignments of error for reversal of his conviction and sentence. Eight of those assignments of error do not present reversible error nor do they involve legal issues not governed by clearly established principles of law. They will be treated in an appendix which will not be published but which will comprise part of the record in this case. The two remaining assignments of error deal with the state’s impeachment of one of its own witnesses.

FACTS

On January 15,1979, the residence of Mr. and Mrs. Edward Riggs, located at 3513 Meraux Lane in St. Bernard Parish, Louisiana, was burglarized. The burglary was discovered by Mrs. Riggs when she returned from work. Some money plus two handguns — “a 22 magnum caliber manufactured by Colt firearms [and] a 22 long rifle caliber, two barrel Darrenger, over and under made in Italy” — were reported stolen; the serial numbers of the handguns were given to the St. Bernard Sheriff’s Office. Earlier that afternoon, Detective Ralph Carreras of the St. Bernard Sheriff’s Office had received a call from an “unknown” person who informed Carreras that he had seen three subjects pulling a burglary at 3513 Meraux Lane. The informant gave Carrer-as the license number and a description of the car used by the burglars. Investigation showed the car was registered in the name of a Mrs. Granna.

In the early afternoon of the next day (January 16), two New Orleans Police Department officers on patrol received a call that some people were discharging firearms in a posted area off Paris Road in New Orleans East. Upon proceeding there, Daniel Luther and his partner observed two white males discharging firearms. The officers identified themselves and asked the men to drop their arms, whereupon defendant and his brother ran into the woods. The officers placed a call for assistance.

Among those responding to the call was Officer David Skevington. He observed defendant lying about fifteen feet inside the woods, apprehended him, read him his Miranda rights while walking him out of the woods, and turned him over to Officer Luther. Skevington then returned to the woods, “back along where the brush was beaten down” and about fifteen feet from where he had found defendant he recovered a “22 caliber blue steel revolver” stuck in the mud. Also recovered was a handgun described by Officer Luther as “a 22 caliber type Derringer made in Italy .. . chrome plated ... missing both handles.”

Officer Luther questioned defendant about the guns and defendant stated “the guns were hot from St. Bernard Parish.” When asked what he meant by that statement, defendant said the guns “were stolen from a burglary in a residence in St. Bernard Parish.” Officer Harold Buttone also questioned defendant and was told by him “from what he could understand the gun was taken from a burglary in St. Bernard.”

After defendant was booked, Officer Luther contacted the St. Bernard Sheriff’s Office and informed them that two weapons possibly taken in a residential burglary in that parish had been recovered. The physical descriptions and serial numbers of the weapons seized at the time of defendant’s arrest were found to match those of the weapons taken from the Riggs’ residence the day before.

Jeffery Granna, defendant’s cousin and the son of the Mrs. Granna whose car had been used in the burglary, was arrested. He entered a plea of guilty to simple burglary. The facts read into the record at that time by the assistant district attorney stated that Granna had told the St. Bernard Sheriff’s Office “that he along with Rickey and Vincent Laprime entered the house on Meraux and that he stood in the automobile while Vincent went in and got guns and money and also his share of the burglary was $14.00.”

At defendant’s trial, the state called Granna as a witness. Granna admitted he had pled guilty to having burglarized “that home on Meraux Lane” but denied any remembrance of the details of the burglary or that defendant had been with him. Over defendant’s objection, the trial judge declared Granna a hostile witness and permitted the state to use the transcript of the hearing at the time he entered a guilty plea to impeach him. Thereafter, the transcript of the hearing was introduced in evidence without objection.

ASSIGNMENTS OF ERROR NOS. 8 AND 9

Defendant contends the trial judge erred in declaring Granna, a state witness, hostile and in permitting the state to impeach him with the transcript of the hearing at the time he entered a guilty plea to the same crime for which defendant was being tried. In any event, he argues that the transcript of the prior hearing should have been admitted only for impeaching purposes, not as substantive evidence of defendant’s guilt.

When the state called Granna as its witness, he was asked if he had been convicted of simple burglary of the home of Edward Riggs at 3513 Meraux Lane, Meraux, Louisiana, on January 15, 1979. He responded, “I don’t know what it was but I know I was convicted of something.” When asked if he pled guilty to having burglarized “that home on Meraux Lane,” he responded, “Yes, sir I pleaded guilty,” but he then proceeded to deny any remembrance of the date, the place, what was taken, or whether defendant had been with him. The state requested that Granna be declared hostile on the ground that he had previously pled guilty to this particular burglary at which time he had admitted the specific facts, including defendant’s participation in the crime, which he now did not remember. In addition, the witness had informed the state that he was unwilling to testify in this matter. Over defendant’s objection, the trial judge declared Granna a hostile witness and permitted the state to use Gran-na’s prior Boykinization to impeach him. The state then asked Granna whether he remembered the statement of facts read into the record by the assistant district attorney at the time of his Boykinization which included the fact that Granna had told the St. Bernard Sheriff’s Office “that he along with Rickey and Vincent Laprime entered the house on Meraux and that he stood in the automobile while Vincent went in and got guns and money and also his share of the burglary was $14.00.” Granna responded that he did not remember. The state then offered the record of Granna’s Boykinization in evidence. The trial judge asked defense counsel if he had any objection. Defense counsel responded: “No objection, your Honor.” The state then rested and the judge ordered that the exhibits be shown to the jury. The record of Granna’s Boykinization shows that after the assistant district attorney had read the facts into the record, the trial judge questioned Granna as to whether either of the Laprimes had gone into the house while Granna remained in the car as he contended. Granna responded that “[he hadn’t] seen them. It’s around the back,” but he admitted having received some of the funds from the burglary.

Either surprise or hostility will permit a party to impeach his own witness. La.R.S. 15:487; State v. Edwards, 419 So.2d 881 (La.1982). The settled rule in Louisiana is that when a witness other than the defendant is impeached by the admission of a prior inconsistent statement, the statement is admissible only on the issue of credibility and not as substantive evidence of the defendant’s guilt. However, the defendant must specifically request that the trial judge give a limiting instruction to that effect or suffer the risk that the jury will credit the state’s case with supplemental evidence which ought not be substantively considered. State v. Allien, 366 So.2d 1308 (La.1978); State v. Ray, 259 La. 105, 249 So.2d 540, 548 (1971) (on rehearing). Nonetheless, a defendant should not be convicted on the strength alone of such evidence. Al-lien, supra.

The record clearly shows that Granna was a hostile witness. State v. Edwards, supra; State v. Bradford, 367 So.2d 745 (La.1978). The trial judge therefore correctly ruled that the state could use Granna’s prior Boykinization to impeach him. Defendant did not ask the trial judge to give an instruction limiting the evidence to the issue of credibility. He therefore took the risk that the jury would consider that evidence as substantive evidence of his guilt. However, defendant was not convicted on this evidence alone. Defendant was in possession of the guns stolen from the Riggs residence the day after the burglary and, when found with the guns, admitted to the police that “the guns were hot from St. Bernard Parish,” having been stolen during the burglary of a residence. Clearly, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found defendant guilty of simple burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Noble, 425 So.2d 734 (La.1983).

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

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

DIXON, C.J., concurs.

LEMMON, J., concurs in the result and assigns reasons.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent from only that portion of the majority opinion which finds sufficient other evidence of the defendant’s guilt of the crime of simple burglary.

The entire case against Laprime, excluding the transcript from Granna’s guilty plea proceeding (impeachment evidence), consisted of the testimony of six witnesses: the burglary victim, four police officers and Granna. The victim and Officer Riggs identified the guns seized as those taken from the Meraux residence. Officer Carr-eras testified that an unknown caller phoned to report seeing the burglary committed at the Meraux address by three persons, and to report the license number of the vehicle used. That vehicle was registered in the name of Ms. Granna (mother of the witness, Jeffrey, Jr.). Ms. Granna was not arrested in the case. The other three officers testified about the shooting incident in New Orleans East, the arrest of the Laprime brothers and Granna, and the seizure of the guns. The final state witness was Jeffrey Granna, who admitted pleading guilty a year earlier to the burglary but who otherwise remembered no specifics of the crime or of any co-participants. The best that can be said concerning the state’s case against defendant, excluding the transcript of the Boykin proceeding, is that La-prime was shown to have been in possession of, and firing stolen weapons, in an area in New Orleans East.

LEMMON, Justice,

concurring.

In State v. Allien, 366 So.2d 1308 (La.1978), this court reversed a conviction which was founded solely upon uncorroborated hearsay testimony, although the defendant had not objected to the admission of the evidence. The problem was one of sufficiency of evidence, and the decision stands for the proposition that completely uncorroborated hearsay evidence, consisting of the unsworn, out-of-court statement of a witness who later denies the truth of the statement, is not alone sufficient to sustain a conviction.

Later, in State v. Boutte, 384 So.2d 773 (La.1980), the court distinguished Allien and recognized that “[ojrdinarily if hearsay evidence is admitted without objection, it becomes substantive evidence and may be used by the trier of fact to the extent of any probative or persuasive power that it has”. 384 So.2d at 776. See United States v. Pearson, 508 F.2d 595 (5th Cir.1975); United States v. Orrico, 599 F.2d 113 (6th Cir.1979).

This case is clearly distinguishable from Allien, because other evidence presented by the state substantially corroborated the unobjected to hearsay statement of the convicted co-offender, Granna.

Defendant cannot now claim that the trial court erred in admitting the unobjected to hearsay. C.Cr.P. Art. 841. Further, a reasonable juror, on the strength of the probative force of all of the state’s evidence (including the hearsay), could have concluded that defendant’s guilt was proved beyond a reasonable doubt.

      . Defendant was tried by a jury composed of six jurors, all of whom had to concur to render a verdict. La.Code Crim.P. art. 782(A).

      . As the majority apparently concedes, the impeachment evidence in this case (the transcript of Granna’s guilty plea proceeding containing the statement of facts by the assistant district attorney) is admissible only on the issue of credibility and not as substantive evidence.

      . The issue in the present case is the probative value of unobjected to hearsay evidence, which is different from the more limited issue question of the probative value of prior unsworn inconsistent statements which are later repudiated under oath. I do not necessarily agree with the assertion in the majority opinion in Allien that prior inconsistent statements do not constitute substantive evidence. That issue, however, is not truly involved in this case, because the witness said nothing at trial which was inconsistent with his prior statements quoted in the guilty plea colloquy.

      . In his dissent in Allien, Justice Marcus had asserted that “[h]earsay evidence not objected to constitutes substantive evidence”. 366 So.2d at 1314. See also Chief Justice Sander’s dissent in Allien. The real problem is the amount of weight to be accorded to such evidence in determining overall sufficiency.

      . There was other evidence that defendant was a principal to the crime to which Granna pleaded guilty. Shortly after the burglary, defendant was found in possession of weapons stolen during the burglary. At the time of his arrest in Orleans Parish, defendant admitted to officers an awareness that the guns were fruits of a burglary in St. Bernard Parish.

      . If defendant had objected to the hearsay nature of Granna’s statements quoted in the guilty plea colloquy, then the district attorney could have taken other steps, such as warning Granna of the penalty for perjury and then questioning him further about the truth of the statements in the light of the warning. The record does not indicate (again, possibly, because of the lack of objection) whether the officers to whom Granna made his statement are still available.


text:
    Alex Chalmers HOPE, Jr. v. LOUISIANA STATE BAR ASSOCIATION.
    No. 83-OB-0380.
    Supreme Court of Louisiana.
    Aug. 31, 1983.
   In re Alex Chalmers Hope, Jr., applying for admission to the La. State Bar Association.

Admission Denied.


text:
    PEOPLES BANK AND TRUST COMPANY v. Hugh Cliff MORTON, a/k/a Hugh C. Morton.
    No. 83-C-1168.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Hugh Cliff Morton, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. No. CA 0286. First City Court, City of New Orleans. No. 253-477. Parish of Orleans.

Denied.


text:
    STATE of Louisiana, ex rel., Lionel PERKINS, Jr. v. CLERK OF COURT, SUPREME COURT, ORLEANS PARISH.
    No. 82-KH-2680.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Lionel Perkins, Jr., applying for writ of mandamus and remedial writs. Parish of Orleans. No. 246-138.

Denied.


text:
    STATE of Louisiana ex rel., Frank EDWARDS v. Donald HATHAWAY, Sheriff.
    No. 83-KH-1129.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Frank Edwards, applying for writ of habeas corpus. Parish of Caddo. No. 111865.

Granted. This application is transferred to the district court for action. The clerk should receive and file all habeas applications; he does not have the authority to deny applications for habeas corpus or post-conviction relief.


text:
    STATE of Louisiana, ex rel., Reinier NESLO v. STATE of Louisiana.
    No. 82-KH-0686.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Reinier Neslo, applying for writ of mandamus. Parish of Orleans. No. 276-264.

Denied. Moot.


text:
    STATE of Louisiana ex rel., James S. SMITH v. Ross MAGGIO, Warden.
    No. 83-KH-0224.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re James S. Smith, applying for remedial writs of certiorari and habeas corpus. Parish of Tangipahoa Twenty-first Judicial District Court.

Denied.


text:
    STATE of Louisiana v. Larry B. COBB.
    No. 83-K-0672.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Larry B. Cobb, applying for writs of certiorari, mandamus, and review. Court of Appeal, First Circuit, Parish of East Baton Rouge. No. 82-KA-0661. Nineteenth Judicial District Court. No. 10-81-631.

Denied.


text:
    STATE of Louisiana ex rel., Wayne A. ADAMS, Bobby Durand v. STATE of Louisiana, Honorable Frank Shea.
    No. 83-KH-0860.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Wayne A. Adams and Bobby Du-rand, applying for a remedial writ. Parish of Orleans, Criminal District Court. No. 268-238.

Denied. Moot.


text:
    Frank J. BUSALACCHI v. Kenneth E. VOGEL, M.D. and ABC Insurance Co.
    No. 83-C-1141.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Frank J. Busalacchi, applying for writ of certiorari or review. Court of Ap-' peal, Fourth Circuit. No. 76-10832. Parish of Orleans, Civil District Court. No. 13184.

Denied.

MARCUS, J., would grant the writ.


text:
    Oail A. PHILLIPS v. INSILCO SPORTS NETWORK, INC.
    No. 83-C-1145.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Insilco Sports Network, Inc., applying for writ of certiorari. Court of Appeal, Fourth Circuit. No. 0134. Parish of Orleans, Civil District Court. No. 82-6740.

Denied.


text:
    LOUISIANA ASSOCIATION OF PLANNING AND DEVELOPMENT DISTRICTS v. Governor David C. TREEN and the State of Louisiana.
    No. 83-C-1154.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Louisiana Association of Planning and Development District, et al, applying for writ of certiorari or writ of review. Court of Appeal, First Circuit. No. 261,983. Parish of East Baton Rouge, Nineteenth Judicial District Court. No. 83-C-0207.

Denied.

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


text:
    Mary Eunice HARRISON and Mary Evelyn Wallace, wife of/and Jack L. Wallace v. Krishnannair Viajaya KUMAR, et al.
    No. 83-C-1170.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Mary Eunice Harrison and Mary Evelyn Wallace, wife of/and Jack L. Wallace, applying for writ of certiorari or review. Court of Appeal, Fourth Circuit. No. CA 0144. Parish of Orleans, Civil District Court. No. 79-12839.

Denied.


text:
    Katherine GRAMM and James Gramm v. Clinton N. BROCK.
    No. 83-C-1205.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Katherine Gramm and James Gramm, applying for writ of review. Court of Appeal, Second Circuit. No. 15302-CA. Parish of Caddo, First Judicial District Court. No. R-51,958 (B).

Denied.


text:
    The TRAVELERS INS. CO. and Linda Blanchard v. John Zack BLANCHARD & Allstate Insurance Co.
    No. 83-C-1206.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re John Zachary Blanchard, Jr., applying for writ of certiorari. Second Circuit Court of Appeal. No. 15385-CA. First Judicial District Court, Parish of Caddo. No. 286587.

Denied.


text:
    Walter M. HINTON v. Geneva Sue Terral WEAVER, et al.
    No. 83-C-1207.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Geneva Sue Terral Weaver, et al, applying for writ of certiorari and/or review. Second Circuit Court of Appeal. No. 15226-CA. Third Judicial District Court. No. 23354. Parish of Union.

Denied.


text:
    James Edward NASH v. EWING TIMBER, INC. and Worldsurance, Inc.
    No. 83-C-1210.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Ewing Timber, Inc. and Worldsu-rance, Inc., applying for certiorari, or writ of review. Court of Appeal, Second Circuit. No. 15,358-CA. Parish of Bienville, Second Judicial District Court. No. 26001.

Denied.


text:
    Alex CAZES, Widower of Mary Cazes, Laura Cazes Beadle and Alma Cazes Michel v. J. RAISINGER, his Employer, Jack Eckerk Corporation d/b/a Eckerd Drug Store No. 523 and Their Insurance Carrier, The Travelers Indemnity Company.
    No. 83-C1247.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Alex Cazes, Widower of Mary Cazes, Laura Cazes Beadle and Alma Cazes Michel, applying for writ of certiorari and writ of review. Fifth Circuit Court of Appeal. No. 82-CA-71. Twenty-ninth Judicial District Court, Parish of St. John the Baptist. No. 12132.

Denied.


text:
    Ronald J. PREVOST and Patti H. Prevost v. J.K. COWAN, Sr. Contracting Co., Inc., Continental Insurance Co., and Hillary T. Hernandez.
    No. 83-C-1264.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re J.K. Cowan, Sr., Contracting Company, Inc., et al, applying for writ of certio-rari or review. Court of Appeal. No. 82 CA 0261. Parish of Livingston, Twenty-First Judicial District Court. No. 32801.

Writ denied.


text:
    STATE of Louisiana ex rel., George MITCHELL v. John M. McGOUGAN.
    No. 83-KH-1493.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re George Mitchell, applying for Writ of Certiorari, or Writ of Habeas Corpus, Parish of East Baton Rouge, No. 264-253.

Denied.


text:
    STATE of Louisiana, ex rel., Johnny Michael WILLIAMS v. STATE of Louisiana.
    No. 83-KH-1615.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Johnny Michael Williams, applying for writ of mandamus and habeas corpus. Second Circuit Court of Appeal. No. 15607-KH. Parish of Ouachita, Fourth Judicial District Court. No. 41221.

Denied.


text:
    STATE of Louisiana ex rel., Elvin BLANTON v. STATE of Louisiana, CRIMINAL DISTRICT COURT, New Orleans Criminal Sheriff Charles Foti.
    No. 83-KH-1670.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Elvin Blanton, applying for remedial writ. Criminal District Court, Parish of Orleans. Section D, Nos. 292 — 731, 292 — 738. Court of Appeal, Fourth Circuit. No. K-1034.

Writ denied.


text:
    Robert D. WINSTON, Jr. v. BOURGEOIS, BENNETT, THOKEY AND HICKEY, CERTIFIED PUBLIC ACCOUNTANTS.
    No. 83-C-1745.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Robert D. Winston, Jr., applying for writ of certiorari and review. Court of Appeal, Fourth Circuit. No. CA-0489. Parish of Orleans, Civil District Court. No. 80-19566.

Denied.

MARCUS and WATSON, JJ., concur in the denial because the application is not timely.


text:
    STATE of Louisiana, ex rel., William CONGER v. State of Louisiana Criminal District Court Criminal Sheriff Charles FOTI.
    No. 83-KH-1828.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re William Conger, applying for remedial writs. Parish of Orleans. No. 297-507.

Denied.


text:
    STATE of Louisiana, ex rel., Merlin RENARD, Jr. v. Frank J. SHEA, Judge Criminal District Court, Section “G”.
    No. 83-KH-0428.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Merlin Renard, Jr., applying for writ of mandamus. Parish of Orleans. No. 264-958.

Granted. Trial court is ordered to act on relator’s pending application by 9/30/83.


text:
    STATE of Louisiana v. Willard CARTER, Jr.
    No. 83-KH-0245.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Willard Carter, Jr., applying for writs of certiorari prohibition and mandamus. Parish of Orleans, Criminal District Court. No. 261-604.

Granted. Boykin transcript ordered.


text:
    STATE of Louisiana v. Willard CARTER, Jr.
    No. 83-KH-0055.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Willard Carter, Jr., applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 277-500.

Granted in part. Boykin transcript is ordered provided to relator. Otherwise, application denied.


text:
    Isabel MITCHELL v. Willie CLARK, Jr. et al.
    No. 83-C-1204.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Isabel Mitchell, applying for writ of certiorari or review. Second Circuit Court of Appeal. First Judicial District Court, Parish of Caddo. No. 281-442, 431 So.2d 817.

Granted.


text:
    Stan DOUSSON d/b/a Lake Forest Shell Service Station v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 83-C-1621.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Stan Dousson d/b/a Lake Forest Shell Service Station, applying for certiora-ri, or writ of review. Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court. No. 591-768. 429 So.2d 466.

Not considered. The judgment is definitive. La.C.C.P. Art. 2166.


text:
    Curtis WILLIAMS and Willie Mae Hyman Parents of the Deceased John Henry Williams v. CITY OF NEW ORLEANS, New Orleans Public Service, Inc. and South Central Bell Telephone Co. Marion Porter ACHEE v. CITY OF NEW ORLEANS, New Orleans Public Service, Inc. and South Central Bell Telephone Co.
    No. 83-C-1819.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re New Orleans Public Service, Inc., applying for writ of certiorari or review. Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court. No. 79-3122 and 79-5585. 433 So.2d 1129.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. David WELLS.
    No. 83-K-1062.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Reconsideration Denied Oct. 7, 1983.
   In re David Wells, applying for writ of certiorari or review. Court of Appeal, Third Circuit. Twelfth Judicial District Court, Parish of Avoyelles. No. 48057. 429 So.2d 502.

Denied.


text:
    STATE of Louisiana v. Byron HARRINGTON.
    No. 83-KK-0994.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Byron Harrington, applying for rehearing on denied writ of June 10, 1983, 435 So.2d 433. Third Circuit Court of Appeal. Nos. K83-6 and K82-624. Thirty-eighth Judicial District Court. No. 35154-55. Parish of Cameron.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Brent LUDWIG.
    No. 82-K-2652.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Brent Ludwig, applying for supervisory writs. Parish of Orleans, Criminal District Court. No. 290-102. 422 So.2d 168.

Denied, reserving relator's right to seek review to the appropriate appellate court on other contentions, in event this Court reverses ruling of trial court, on state's appeal.


text:
    James D. WEINNING, Jr. Individually and on Behalf of his Minor Children, Allison Theresa Weinning and James Dennis Weinning v. BROWN & ROOT, INC. Highlands Insurance Co., George Staggs, Gene Hembre, Kevin Riggins, Joe Burkes and Rebel Crane and Service Co., Inc. and ABC Insurance Company.
    No. 83-C-1107.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re James D. Weinning, Jr., et al. applying for reconsideration on granted writ dated June 17, 1983, 434 So.2d 1099. Court of Appeal, Fifth Circuit, Parish of Jefferson. No. 82-CA-0154. Twenty-fourth Judicial District Court. No. 252-345.

Rehearing denied.

CALOGERO and DENNIS, JJ., would grant rehearing.


text:
    LIVINGSTON PARISH POLICE JURY, et al, on their own Behalf and as Members of a Class and on Behalf of all Others Similarly Situated v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, et al.
    No. 83-C-1601.
    Supreme Court of Louisiana.
    Sept. 7, 1983.
   In re Illinois Central Gulf Railroad Company, W.E. Young, Lonnie R. Stearns and Eddie Scott, applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of Livingston, 432 So.2d 1027. From the 21st Judicial District Court, Number 40,049.

Writ denied.

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