author: NESBITT, Judge. JORGENSON, Judge,

text:
    The PRUDENTIAL INSURANCE COMPANY OF AMERICA, INC., Appellant, v. Herbert M. BAITINGER, Jr. and Jocelyn G. Baitinger, as Personal Representatives of the Estate of Gail Baitinger Johnson, Deceased, Appellees.
    No. 83-1552.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.

      Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Miami, for appellant.
    Lyons & Farrar and Marsha Lyons, Miami, for appellees.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   NESBITT, Judge.

Prudential Insurance Company of America (Prudential) appeals an order of the probate court requiring payment of $250,000 in insurance benefits to the personal representatives of Gail Johnson’s estate. We affirm the order under review.

Gail Johnson died intestate on August 4, 1983, the apparent victim of a homicide. Shortly thereafter, her widower, Lee Johnson, was arrested and subsequently convicted and adjudicated guilty of the first degree murder of his wife. His appeal from that conviction is still pending.

At the time of her death, Gail Johnson was covered by life insurance policies issued by Prudential and two other insurance companies. The Prudential policy is in the amount of $250,000 and names Lee Johnson as the beneficiary. Following Johnson’s conviction, the probate court ordered Prudential to pay the proceeds of the policy to the personal representatives of Gail Johnson’s estate. Prudential appeals this order.

Under section 732.802(3), Florida Statutes (1983), a named beneficiary of a life insurance policy who unlawfully and intentionally kills the insured is not entitled to any benefits under the policy. In this regard, the statute essentially codifies the supreme court’s holding in Carter v. Carter, 88 So.2d 153 (Fla.1956). Although in the absence of a conviction of murder, the court may determine whether the killing was “unlawful and intentional” by the “greater weight of the evidence,” § 732.-802(5), the record in the present case does not indicate the court made any such determination. The court, therefore, must have relied upon the statutory provision in section 732.802(5) that:

A final judgment of conviction of murder in any degree is conclusive for purposes of this section.

Prudential contends that the court could not rely upon Lee Johnson’s judgment of conviction because it was not “final” since an appeal thereof was pending. Prudential relies principally upon Joyner v. State, 158 Fla. 806, 30 So.2d 304 (1947), wherein the supreme court held that, for purposes of conviction under Florida’s habitual criminal statute, if an appeal has been taken, a judgment of conviction does not become final until it has been affirmed by the appellate court. We find, however, that Joyner is not controlling in the instant case.

Our primary concern in the realm of statutory interpretation is to vindicate the legislative intent. Moldofsky v. Stregack, 449 So.2d 918 (Fla. 3d DCA 1984). In doing so, we must look at each separate and distinct legislative enactment independently. Therefore, the supreme court’s interpretation of “final judgment of conviction” for purposes of the habitual criminal statute in Joyner is not necessarily controlling in other areas. See DePaulis v. Judges of District Court of Appeal, Fourth District, 373 So.2d 663 (Fla.1979) (where the supreme court found that language in the Florida Constitution concerning a final judgment of conviction was intended to mean adjudication of guilt by the trial court). See also Weathers v. State, 56 So.2d 536 (Fla.1952) (where the supreme court quoted legislative language to the effect that it is a “final judgment of conviction” from which a defendant has a right to appeal), (emphasis added).

In determining the legislative intent behind section 732.802, it is extremely helpful to compare the present statute with its predecessor. The prior statute stated that “[a] person convicted of the murder of a decedent shall not be entitled to inherit from the decedent or to take any part of his estate as a devisee.” § 732.802, Fla. Stat. (1981). That statute applied only to property that would pass by intestacy or through the decedent’s will. Carter. In 1982, the legislature expanded the scope of the section to prevent a killer from receiving property passing outside the decedent’s estate. See § 732.802(2) (concerning sur-vivorship interests in property held in joint tenancy or tenancy by the entirety or in any other form of co-ownership); § 732.-802(3) (concerning interests created by contractual arrangements, such as insurance policies and bonds); § 732.802(4) (catchall provision concerning any other acquisition of property or interest by the killer). Additionally, the former statute required a criminal conviction of murder as a prerequisite to a forfeiture of the killer’s interest in the decedent’s estate. See Peeples v. Corbett, 117 Fla. 213, 157 So. 510 (1934). See also Nable v. Estate of Godfrey, 403 So.2d 1038 (Fla. 5th DCA 1981) (the prior statute required a conviction of murder and manslaughter was insufficient to trigger the statute’s forfeiture provision). The present statute, on the other hand, does not require a conviction of murder. In the absence of such a conviction, it specifically provides for a civil homicide proceeding where the standard of proof is “the greater weight of the evidence.” § 732.802(5).

The foregoing clearly illustrates that the legislature intended to make it more difficult for a killer to receive any beneficial interest as a result of his wrongdoing. See State v. Rodriquez, 365 So.2d 157 (Fla.1978) (“It is a fundamental rule of statutory construction that the entire statute under consideration must be considered in determining legislative intent.”). Accord State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977). The legislature, thereby, was acting in accordance with the public policy expressed in Carter. The change in the statutory language from “convicted of the murder” in the former statute, to “final judgment of conviction of murder” in the present statute was merely stylistic. See DePaulis (insertion of the word “judgment” was not intended to alter the policy, it was designed only to resolve a potential ambiguity in the word “conviction”; the committee intended the finality of conviction to be the adjudication of guilt); State v. Webb, 398 So.2d 820 (Fla.1981) (“legislative intent is the polestar by which the court must be guided, and this intent must be given effect even though it may contradict the strict letter of the statute”). We hold that the legislature intended that “final judgment of conviction” mean an adjudication of guilt by the trial court and that such would be conclusive for purposes of section 732.802. See DePaulis.

Lee Johnson was tried, convicted and adjudicated guilty of the first degree murder of his wife. This was conclusive for purposes of determining his interest in the insurance proceeds as the named beneficiary in the policy covering his wife’s life. § 732.802(5). Pursuant to the statute, Lee Johnson was entitled to no benefits under the policy, and the policy became payable as though he had predeceased his wife. § 732.802(3). The proceeds, therefore, were payable to any alternative beneficiaries designated in the policy, Carter, or absent such designation, to the decedent’s estate.

For the foregoing reasons, we affirm the trial court’s order requiring Prudential to pay the policy proceeds to the personal representatives of Gail Johnson’s estate.

JORGENSON, Judge,

specially concurring.

Prudential’s appeal is based upon its apparent fear that should Johnson prevail in the pending appeal from his homicide conviction Prudential will be bound by its insurance contract to pay to Johnson benefits it would already have paid to the late Mrs. Johnson’s estate, thereby subjecting Prudential to double liability. It is evident from the record that Prudential’s compliance with the probate court’s order will result only in the payment of the benefits of the insurance policy into one-year certificates of deposit. The probate court has taken appropriate steps to forestall distribution of the proceeds until resolution of Johnson’s criminal appeal.

Although to some extent the facts of this case (and to a far greater extent a scenario in which an innocent person is convicted of killing his spouse but ultimately proven to be truly, not technically, innocent) demonstrate that the risk of application of the statute to the wrong person cannot be eliminated, the risk would be greatly reduced by amending the statute to provide for its application only by means of a civil homicide proceeding without reference to a criminal conviction.

      . The language had changed very little from the initial enactment of the provision in 1933. See Peeples v. Corbett, 117 Fla. 213, 157 So. 510 (1934) (quotes the original provision).

      . The prior statute did not work a forfeiture of survivorship interest in property held by the entirety where one spouse killed the other. The statute was inapplicable because the interest passed outside the decedent’s estate. Instead, courts had to resort to the equitable principle that "no one should profit by his crime," to keep the property out of the killer’s hands. See Ash-wood v. Patterson, 49 So.2d 848 (Fla.1951).

      . The prior statute did not apply to insurance proceeds passing to a beneficiary who killed the insured. Again, courts had to resort to the equitable principle that a wrongdoer will not be permitted to profit by his own wrong, to prevent the killer from receiving the proceeds. See Carter.

      In Carter, the supreme court held that an insurance beneficiary who is found in a civil proceeding to have “unlawfully and intentionally killed” the insured is not entitled to the insurance proceeds. The court held that a preponderance of the evidence was the proper standard in such a proceeding. The present statute adopts this standard and procedure.

      .This provision clearly illustrates the legislative intent to broaden the scope of the statute as far as possible so that courts would no longer have to rely solely on equitable principles to prevent a killer from profiting from his action.

      . Referring to the prior statute, Judge Cowart, in Nable, 403 So.2d at 1041 (concurring opinion), found it:
      ironic that this statute, ostensibly enacted to enable the courts to deny benefit to a killer, is now used as the very tool to accomplish what it was designed to prevent. The relative rights to the property of a decedent, as between the decedent’s killer and the decedent’s other heirs or devisees, should not be left to depend on the willingness of the public prosecuting officer and the ability of a criminal defense counsel to make a deal as to one degree of homicide rather than another. The present statute should be replaced with one merely stating the broader principle that one whose act, procurement, or culpable negligence causes the death of another shall receive no property or other benefit as a result of such death.
      It is obvious that the legislature recognized these concerns when it enacted the new statute in 1982.

      . In Carter, 88 So.2d at 157, the supreme court stated:
      It is an axiom of the common law, supported by admirable concepts of common justice, that no person should be permitted to benefit from his own wrong. It is offensive to our sense of right that a wrongdoer be allowed to exploit his wrongs to the injury of another and to the profit of himself.


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    Robert HOPKINS, Appellant, v. DIVERSIFIED STEEL SERVICES, and Aetna Casualty & Surety Company, Appellees.
    No. AW-84.
    District Court of Appeal of Florida, First District.
    June 26, 1984.
    Anthony J. Beisler, III, Fort Lauderdale, for appellant.
    Steven Kronenberg, Adams, Kelley & Kronenberg, Miami, for appellees.
   MILLS, Judge.

We affirm the deputy commissioner’s order finding Hopkins’ injuries noncompensa-ble. Competent and substantial evidence supports the finding that he is not entitled to compensation because his injuries were occasioned primarily by his intoxication or because he was the aggressor in a fight. In either case, Section 440.09(3), Florida Statutes (1983) precludes compensation.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    The MIAMI HERALD PUBLISHING COMPANY, Petitioner, v. The Honorable Royce R. LEWIS, Respondent.
    No. 83-2723.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.

      Richard J. Ovelmen, Paul J. Levine and Angel Castillo, Jr., Miami, for petitioner.
    Thomas J. Walsh, Jr., Asst. State Atty., Jeffrey H. Garland, Asst. Public Defender and Ben L. Bryan, Jr., Fort Pierce, for respondent.
   PER CURIAM.

This is a proceeding brought pursuant to Rule 9.100(d), Florida Rules of Appellate Procedure.

The State of Florida filed an unsworn Motion to Mitigate, Reduce or Alter Sentence as concerns one Brack who had been previously convicted and sentenced for trafficking in marijuana.

Petitioner sought to intervene and participate in a “good cause” hearing pursuant to Section 893.135(3), Florida Statutes (1982) as to whether or not the proceeding (State’s Motion) would be heard in camera.

Respondent, Circuit Judge, found:

(3) The public and press are not entitled to intervene in the court’s determination as to whether “good cause” exists for the holding of a hearing, in camera, on a motion to mitigate under Section 893.135(3)

and thereupon denied Petitioner’s Motion to Intervene and disallowed any participation by it in a “good cause” hearing or otherwise. The hearing upon the State’s Motion was then heard in camera. It appears from the appellate presentation that a tape recording of the in camera hearing upon the State’s Motion is in existence.

Regardless that the hearing in question is now history, we hold that the appellate issue here present is not moot upon authority of Nebraska Press Assoc. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Palm Beach Newspapers, Inc. v. Cook, 434 So.2d 355 (Fla. 4th DCA 1983).

We reverse the appealed order of December 12, 1983, and remand with instructions that a proper hearing be conducted with participation by Petitioner for the purpose of determining as a matter of law and fact, what portions, if any, of the tape recorded sentence reduction hearing in question must be withheld from the public. Palm Beach Newspapers, Inc., supra; Miami Herald Pub. Co. v. Lewis, 426 So.2d 1 (Fla.1982); Palm Beach Newspapers, Inc. v. Nourse, 413 So.2d 467 (Fla. 4th DCA 1982); State ex rel. Miami Herald Pub. v. McIntosh, 340 So.2d 904 (Fla.1977).

Reversed and remanded with instructions.

DOWNEY, HURLEY and WALDEN, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Samuel Lee BOWERS, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-997, 83-998.
    District Court of Appeal of Florida, Second District.
    June 27, 1984.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

This is an appeal from an order revoking probation and the subsequent judgments and sentences. We affirm in part and reverse in part.

On February 26, 1981, informations were filed in cases Nos. 81-1121 and 81-1122 charging appellant with two armed robberies which occurred on January 4 and January 19, 1981. The appellant entered guilty pleas to both crimes and, according to the state, was placed on ten years concurrent probation in each case with the condition of serving one year in jail. On March 11, 1983, an affidavit was filed in case No. 81-1121 alleging that the appellant had committed several violations of his probation. After hearing, the court found the appellant guilty of violating his probation and sentenced him to consecutive prison terms of ninety-nine years in each of the two armed robberies occurring in 1981. The court retained jurisdiction over one-half of each sentence.

On appeal the appellant contends that 1) the evidence presented below was insufficient to support revocation of his probation; 2) the trial court erred in revoking his probation in case No. 81-1122 because there was no order placing him on probation, no affidavit of violation of his probation, and no arrest warrant filed in that case; and 3) the trial court erred in retaining jurisdiction over one-half of each of his consecutive sentences. We find no merit in the appellant’s first point. However, we agree with the appellant’s remaining arguments.

The only written documentation in the record which suggests that the appellant was placed on probation in case No. 81-1122 are some handwritten notes in the case progress report. Even the colloquy at the 1981 disposition hearing reflects an ambiguity in that while the court’s language might be construed as imposing concurrent probationary terms of ten years, such a disposition would have been contrary to terms of a plea bargain outlined by appellant’s counsel. The revocation hearing proceeded upon the assumption that appellant was properly before the court on charges of violating his probation in both cases. Yet, the failure to object cannot cure a jurisdictional error. Carpenter v. State, 355 So.2d 492 (Fla.1978). On this record we cannot say that appellant was actually on probation in case No. 81-1122. Therefore, the court had no jurisdiction to revoke appellant’s probation, even if it could be said that appellant waived any requirement for an affidavit of violation and an arrest warrant. Pollack v. State, 417 So.2d 306 (Fla. 3d DCA 1982); Harris v. State, 378 So.2d 37 (Fla. 3d DCA 1980).

With respect to the argument concerning retention of jurisdiction, since the trial court erroneously revoked appellant’s purported probation in case No. 81-1122, there exists only the sentence of ninety-nine years in case No. 81-1121 over which the trial court could retain jurisdiction. At the time the appellant committed the of-fencse involved in case No. 81-1121, section 947.16(3), Florida Statutes (1981), provided that the trial court had the authority to retain jurisdiction over only one-third of the sentence imposed. Thus, the trial court could retain jurisdiction over only one-third of appellant’s ninety-nine year sentence.

We affirm the order in case No. 81-1121 revoking appellant’s probation and the resulting judgment and sentence. However, we strike the provision for retention of jurisdiction and remand to the trial court with directions to reconsider the period of retention in accordance with section 947.-16(3), Florida Statutes (1981). We reverse the order revoking appellant’s probation in case No. 81-1122 and direct that the record in that case be clarified to reflect that appellant is not on probation.

AFFIRMED in part and REVERSED in part.

GRIMES and CAMPBELL, JJ., concur.

      . MR. TIMMERMAN [defendant’s attorney]: Your Honor, Mr. Bowers previously appeared before the Court with regard to two charges of robbery, one being Case No. 81-1121 and 81-1122. Pursuant to plea negotiations with the State on our previous appearance we plead guilty to those two charges.
      (The defendant entered the courtroom.)
      MR. TIMMERMAN: The Court withheld adjudication at that time and ordered a presen-tence investigation, which I believe now has been completed. The plea negotiations were that with respect to Case No. 81-1122 in return for his plea of guilty Mr. Bowers would receive one year in the County Jail with credit. And with respect to Case No. 81-1121 he would be placed on a period of probation the length of which was to be determined by the Court.
      THE COURT: I will withhold adjudication, put him on ten year probationary periods, specify the Hillsborough County Diagnostic Treatment Center as his place of residence on 81-1122 with credit. (R103-04)


text:
    Lillian M. OLSEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-2029.
    District Court of Appeal of Florida, Second District.
    June 27, 1984.

      Lillian M. Olsen, pro se.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal in this case, we find the appellant has failed to demonstrate any reversible error. ■

. The trial court, however, when sentencing the appellant on misdemeanor charges which had been consolidated with a felony charge, sentenced the appellant to “time served” for careless driving. Because careless driving is a noncriminal violation, not punishable by incarceration, the court erred in entering that portion of the sentence. §§ 316.1925, 316.655, 318.13(3), Fla.Stat. (1983). Accordingly, we hereby strike that portion of the sentence which sentences the appellant to “time served” for careless driving.

Furthermore,' the trial court adjudged the appellant insolvent and thereafter assessed $10 in costs against her. Appellant was not given adequate notice of, nor afforded an opportunity to object to, this assessment. Jenkins v. State, 444 So.2d 947 (Fla.1984). Accordingly, we hereby strike the assessment of $10 in costs without prejudice to the trial court assessing costs against the appellant in accordance with Jenkins.

We affirm the trial court s judgments and sentences in all other respects.

BOARDMAN, A.C.J., and SCHEB and SCHOONOVER, JJ., concur.


text:
    Daniel MARCIANO, Appellant, v. STATE of Florida, Appellee.
    No. 83-2300.
    District Court of Appeal of Florida, Second District.
    June 27, 1984.
    David Paul Montgomery, Bradenton, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. D.C.W. v. State, 445 So.2d 333 (Fla.1984).

OTT, C.J., and DANAHY and LEHAN, JJ., concur.


author: BLANCHE, Justice. CALOGERO, Justice.

text:
    STATE of Louisiana v. Ronald L. BROOKS.
    No. 81-KA-3259.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    On Rehearing June 25, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plain tiff-appellee.
    J. Stacey Freeman, Bossier City, Well-born Jack, Jr., Shreveport, for defendant-appellant.
   BLANCHE, Justice.

Defendant was indicted for possession of marijuana with intent to distribute. After finding him guilty as charged, the trial court sentenced defendant to ten years imprisonment and imposed a $5,000 fine. From this conviction, defendant now appeals.

FACTS

The sequence of events leading to defendant’s arrest began when De Soto Parish Sheriff’s Deputy Robert Davidson received a phone call from a confidential informant, notifying him that the defendant was parked near De Soto Junior High School, selling marijuana. Officer Davidson was familiar with the informant, who had provided him with reliable information on several prior occasions. The informant stated that he personally observed a certain quantity of marijuana in the car, and fully described defendant’s car and license plate number.

Upon receiving the information, Officer Davidson (who knew defendant from an earlier arrest for possession of marijuana with intent to distribute) drove to the school area in an unmarked police car. After observing defendant get into a car matching the informant’s description, Davidson followed defendant, placing a flashing red light on his dashboard. Thereafter, defendant pulled into a driveway and stopped. Several deputies joined Davidson, who informed defendant of the reason for the stop and asked permission to search the car. When this request was refused, the officers nevertheless searched the vehicle, and found thirteen packages of what was later determined to be marijuana. Defendant was then arrested and later charged with possession of marijuana with intent to distribute.

On June 25, 1981, defendant was arraigned and entered a plea of not guilty, advising the court that he was being represented by David M. Cohn. Cohn filed a motion for a bill of particulars on July 7, 1981 and a motion to suppress the evidence from the search on July 10, 1981. After a hearing, the motion to suppress was denied. Trial was set for August 10, 1981. On August 6, 1981, defendant’s family approached attorney J. Stacey Freeman to represent their son. The two attorneys appeared in court the following day and Cohn received permission to withdraw as counsel, with Freeman enrolling as counsel of record. Freeman then made an oral motion for a continuance, which was denied.

At trial, counsel for defendant took little part in the proceedings. No closing arguments were made and a jury verdict of guilty was returned after one hour of deliberation.

Assignment of Error # 1

By this assignment, defendant contends that his motion for a continuance was improperly denied by the trial court. Defendant maintains that his attorney had an inadequate amount of time in which to prepare for trial because his counsel’s enrollment came only three days prior to trial.

We find that this assignment of error lacks merit. Article 712 of the Code of Criminal Procedure vests much discretion in the trial court’s power to grant a continuance. Absent clear abuse, we will not disturb a trial court’s refusal to grant such a motion. State v. Simpson, 403 So.2d 1214 (La.1981).

This Court has found abuse of discretion in instances where court appointed counsel has had such a minimal time from appointment to trial, that adequate preparation was impractical. State v. Benson, 368 So.2d 716 (La.1979), State v. Winston, 327 So.2d 380 (La.1976). As the Court stated in Winston: “Whether a refusal to grant a continuance was justified depends primarily on the circumstances of the particular case.” 327 So.2d at 382.

In the instant case, defendant’s decision to retain new counsel was made on the eve of the trial. Unlike the cases where counsel was appointed by the court immediately prior to trial, the present defendant was represented by his own counsel during the entire pretrial phase. The withdrawal of original counsel and the simultaneous enrollment of new counsel was not the unavoidable result of some accident or emergency. Instead, defendant appears to have made a deliberate decision to select another attorney to try the case.

Additionally, defendant has demonstrated no prejudice which may have resulted from the failure to grant the continuance. Although defendant’s new counsel claims that he was unable to receive a transcript of the evidentiary hearing on the motion to suppress, he does not suggest how the possession of such a transcript would have altered his trial preparation. As our treatment of assignment of error number two, infra, demonstrates, defendant’s case was headed for disaster once the seized contraband was admitted. Thereafter, other than a plea for mercy, trial strategums had become severely limited. Defendant’s trial counsel had access to the work and files of his predecessor, and makes no showing that the substance of what was brought out in the motion to suppress hearing was not available from former counsel; nor does he show that any new witnesses or evidence would have been available had more time been granted. To refuse to allow defendant to delay his trial by changing attorneys three days before trial, where the change was unnecessary and resulted in no prejudice to defendant, is certainly within the realm of a trial judge’s discretion.

This assignment of error lacks merit.

Assignment of Error # 2

Defendant also objects to the trial court’s failure to suppress the evidence seized at the time of his arrest. Defendant argues that because the automobile was immobile at the time of the search, no exigency existed which would justify the search of the vehicle before a warrant was obtained.

The present standard for warrantless automobile searches under the Fourth Amendment was expressed in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). There, the U.S. Supreme Court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed within it “may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant particularly describing the place to be searched.” 102 S.Ct. at 2159. Thus, for purposes of analyzing warrant-less automoblie searches, the mobile/immobile distinction is no longer relevant. State v. Hernandez, 408 So.2d 911, 914 (La.1981).

In the instant case, Officer Davidson had probable cause to stop defendant’s vehicle. Initially, a confidential informant provided Officer Davidson with the information that defendant was parked near a school selling marijuana, particularly describing the car and its location. A confidential informant may establish probable cause for a war-rantless arrest, providing his underlying credibility is established. State v. Burton, 416 So.2d 73, 74 (La.1982). This credibility is ascertained by looking to the totality of the circumstances surrounding the tip. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Here, the informant was known by Officer Davidson and had provided reliable information in the past leading to numerous drug related convictions. Additionally, Officer Davidson knew defendant from a prior arrest. The informant’s tip was corroborated when defendant was observed where the informant stated he would be, in a car matching the informant’s description. Thus, probable cause existed to arrest defendant.

Once Officer Davidson stopped defendant, he could only search defendant’s car if he possessed probable cause to believe that the vehicle contained marijuana. The tip provided by a reliable informant, and corroborated by defendant’s presence at the location described in the tip, could of itself have provided the necessary probable cause. Moreover, Officer Davidson was familiar with defendant’s prior drug activities and knew that defendant customarily concealed marijuana under the console between the seats in his car. Under the facts and circumstances, Officer Davidson was justified in believing that the vehicle contained marijuana, and was entitled to immediately search the vehicle at the time of arrest, without obtaining a warrant first. See Ross, Hernandez, supra.

This assignment of error lacks merit.

DECREE

For the reasons assigned, defendant’s conviction and sentence are affirmed.

AFFIRMED.

DENNIS, J., concurs with reasons.

WATSON, J., dissents as to Assignment of Error # 1.

On Rehearing

CALOGERO, Justice.

We granted a rehearing in this matter to consider whether Brooks was deprived of his constitutional right to counsel because his lawyer, after motion for continuance was denied and trial had commenced, did not assist Brooks at trial nor present a defense on his behalf. Upon review, we decide that, indeed, the failure of the defendant’s counsel to participate at trial was a denial of Brooks’ constitutional right to counsel. Accordingly we reverse his conviction and sentence and remand the case to the district court for a new trial.

The facts and circumstances of the defendant’s arrest and conviction for possession of marijuana with intent to distribute are detailed in this Court’s opinion on original hearing. Counsel’s failure and refusal to present a defense at trial are accurately and thoroughly presented in the defendant’s brief on application for rehearing presented by a different attorney enrolled only after the case was orally argued on appeal before this Court. Portions of that brief we adopt in pertinent part as follows:

“On the Monday morning of the trial, defense counsel re-urged the oral motion for continuance that he had unsuccessfully urged concurrently with his enrollment as counsel on the preceding Friday. Initially, on that Monday morning, counsel merely argued, ‘I’m just not ready to go to trial on this short notice and request a continuance.’ Then, after the lawyers involved had entered into a ‘stipulation’ concerning the events surrounding defense counsel’s enrollment, defense counsel made his intentions unmistakably clear to the trial court:

I want to acquaint the court with the fact that I am not going to participate in the trial of this matter in any manner. I think the defendant understands my problem [there is no evidence of this anywhere in the record] and I don’t think he is going to be prejudiced in any way by [my] not participating. The simple fact that I am here is not going to affect him one bit. (Emphasis added.)

“The trial court [took] defense counsel’s statement to be a request to absent himself temporarily during voir dire and, accordingly, asked the defendant if he understood that counsel ‘has requested to absent himself from the courtroom during the time the prospective jurors in your case are being called and questioned about their qualifications to serve.’ ... The record does not reflect that the defendant either said or did anything in response to the trial court’s questions: ‘Do you understand the request your attorney has made?’ and, ‘You understand that?’ The record reflects only that when the trial court asked him to stand up, ‘Defendant stands.’

“The District Attorney, however, ... inquired of the Court, ‘If we do pick a jury and are through with the jury and proceed to trial in his absence or what?’ [sic] [Emphasis added.]

“Before the trial court could respond to the District Attorney’s question, defense counsel himself responded, ...

Your Honor, I see no reason why the defendant and I could not absent ourselves from the courtroom. I have to prepare an application for writs. I had rather do it in my office and the Court could call me about the verdict. (Emphasis added.)

“Even after hearing defense counsel say that his physical presence in the courtroom was going to have so little effect on the trial that he could just as well be in his office and be informed by telephone of the verdict, the trial court still appears to [have] misunderstood] the novel and potentially contempt[u]ous intentions of defense counsel. The trial court construed the words of defense counsel as, first, a request for the defendant himself to be absent and then, as a request for a stay pending application for writs to review the denial of the motion for a continuance. The trial court then immediately, without further inquiry, resolved the whole matter to its satisfaction by denying a stay and by ruling that the defendant and his counsel must be ‘present in the courtroom during the selection of the jury in this case.’

“Immediately after the colloquy ... and a short recess of approximately five minutes, voir dire began. It quickly became evident defense counsel meant what he said. He was not kidding. He was not going to take any part in this trial. The court reporter’s note reflects the following:

Only the District Attorney participates in jury selection. Counsel for the defendant does not participate in jury selection at all; does not sit at the counsel table and neither accepts nor rejects any prospective juror.

“Once the jury was selected and the trial itself began, trial counsel was as good as his word. Note the first words spoken by defense counsel after the jury was impaneled and sworn: ‘Your Honor, we are taking no part in the trial.’ Again, when it came time to present a defense opening statement he said, ‘I am not participating in the case.’ He made it clear that what he was saying at that time was not being said in defense of his client, but rather, ‘in my own defense, because it seems very peculiar to a jury, I am sure, and it would probably be very peculiar to any lawyers who might walk into this courtroom to see me sitting idly by while the trial was going on.’ In that statement to the jury, he explained that there was ‘a disagreement between myself and the Court as to whether or not this case should have gone to trial today,’ and, because of that disagreement, ‘I am not going to put on a defense.’

“During the brief period of time occupied by the presentation of the entirety of the evidence in this case, defense counsel neither said nor did anything in defense of his client. He did not object to ... hearsay evidence that a confidential informant had told a deputy that the defendant was ‘in the vicinity of the DeSoto Junior High School’ in his ear with about a dozen lids of marijuana waiting for ‘some people there to sell some marijuana to’. When the thirteen lids of marijuana were offered in evidence and the Court inquired if he had any objection, the court reporter shows, ‘No answer from Mr. Freeman.’ When the prosecutor requested] permission to pass the marijuana to the jury and the Court inquirefd] if the defense ha[d] any objection, defense counsel responded] ‘No statement, Your Honor.’ When the first of the two witnesses called by the prosecution was tendered for cross-examination and the Court inquired if the defense had any questions for the witness, the court reporter notes, ‘No audible answer from Mr. Freeman.’ When the State’s second witness was tendered for cross-examination, and the court inquired if the defense had any questions, the court reporter notes, ‘No response from Mr. Freeman.’

“After the State had rested, ... defense counsel told the Court, ‘Your Honor, at this juncture, and I don’t want to say anything that would indicate that I intend to put on any defense based on the factual claim in this case, I would like to move for a directed verdict.’ He explained his failure to make any objections in the case, ‘I don’t want the record to look like that I am trying to put on a defense when, in fact, I know none at this point that I could put on.’ After argument on this point out of the presence of the jury, the jury was returned and the Court inquired if defense counsel waived the polling of the jury, to which inquiry the transcript reflects, ‘No response.’ Similar notations of no response are made in connection with the verdict of the jury. The defense, of course, made no response to the prosecution summation.”

The state argues that the issue presented is one of ineffective assistance of counsel which should be considered in an application for post conviction relief rather than in an appeal, or as in this case, on rehearing. We conclude that the question presented to this Court for resolution is not one of ineffective assistance of counsel. The present record demonstrates clearly that the defendant received no assistance of counsel. As aptly summarized by present defense counsel for the defendant:

All [Brooks] had going for him in the adversary system was a warm body with a license to practice law. Defense counsel did nothing to defend the defendant. The only thing defense counsel did in the presence of the jury was defend himself against criticism for having done nothing in the defense of his client.

This failure of counsel to participate in any way in defendant’s trial is a constitutional deficiency discoverable by mere inspection of the proceedings which this Court is entitled to review. La.C.Cr.P. art. 920(1). It is therefore reviewable even if it could not be construed as fairly comprehended by an assignment of error.

A defendant’s right to the assistance of counsel is guaranteed by both our state and federal constitutions. U.S. Const. amend. VI; La. Const. art. 1 § 13. The landmark cases of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) set the constitutional standard or mandate involving the right to counsel: “Absent a knowing and intelligent waiver, no defendant may be imprisoned if he was not represented at trial by counsel.” State v. McGowan, 359 So.2d 972 at 974 (La.1978).

At oral argument in this Court, the state argued that the defendant in this case knowingly waived his right to counsel by acquiescing in counsel’s non-participation, an intentional trial strategy designed to force a mistrial, or a continuance. Accordingly the state urged that the matter at least be remanded for an evidentiary hearing in that regard.

The burden of establishing that the defendant knowingly and intelligently waived his constitutional right to the assistance of counsel falls upon the state. State v. Wisenbaker, 428 So.2d 790 at 793, n. 10 (La.1983). We might be moved to consider sending the matter back to the district court for an evidentiary hearing if the state could furnish, even by affidavit, some showing of what might be proved at any such hearing. The state has not done so. We cannot speculate about whether the defendant quietly went along with an affirmative effort to build reversible error, or whether his lack of response when his lawyer did nothing was an implied waiver of his right to counsel, when the record affirmatively shows only that the defendant was not represented by counsel.

The situation in which Brooks found himself at trial can be compared with one which would have been presented had his lawyer not appeared for the trial at all. Accordingly, the reasoning of Wisenbaker is applicable by analogy to this case where at 428 So.2d at 793, we said:

If counsel, and not defendant, was at fault for counsel’s failure to appear or to give timely notice to the trial court of a conflict in schedule, then sanctions must be taken against counsel, not the defendant. City of Baton Rouge v. Dees, 363 So.2d 530 (La.1978). [footnote omitted] [emphasis in original] Counsel’s failure to appear cannot be equated with a waiver by the defendant of his right to counsel, unless defendant was responsible for the nonappearance. As this court said in a unanimous decision in the Dees case:
Whatever may have been the court’s right to discipline counsel if the present motion for continuance was untimely or ill-founded, the client cannot be penalized, by the loss of his constitutional right to legal representation at his trial, for his lawyer’s lapse arising out of a conflict in the lawyer’s trial schedule. This conviction, resulting in imprisonment by an unrepresented defendant who had not waived counsel, must be set aside as having been obtained in violation of the accused’s constitutional right to the assistance of counsel at his trial. 363 So.2d at 532.
The record in the present case does not establish that defendant’s failure to have retained counsel present at the outset of trial was the result of a knowing and voluntary waiver of his right to counsel or of conduct by defendant which might reasonably be deemed to constitute waiver of counsel, (emphasis provided)

Likewise in this case, we find neither a knowing and voluntary waiver of defendant’s right to counsel nor conduct by the defendant which might reasonably be deemed to constitute waiver of counsel.

According to the joint stipulation entered into at trial by the two attorneys involved, the change in counsel occurred in the following manner. Defendant had retained one David M. Cohn under a bifurcated fee arrangement: “a fee to represent him up to the point of trial ... and then in the event the matter should go to trial, if he were to keep me in his employment, I quoted him another fee.” On August 4, 1981, the last pre-trial hearing, a hearing on the motion to suppress, was held. Cohn assisted defendant on the motion to suppress, but the motion was denied. Pri- or to that last pre-trial hearing, defendant was sent a letter/reminder that an additional fee was due before attorney Cohn would go to trial. (Trial was scheduled for August 10, 1981.) After receiving the letter, defendant’s family sought to secure new counsel. On August 6, 1981, J. Stacey Freeman was retained. On August 7, 1981, attorneys Cohn and Freeman appeared in court, obtaining permission respectively to withdraw and to enroll as counsel. At that time, Freeman requested a continuance, and it was denied.

We do not find in this sequence of events the kind of obstructive behavior on the part of the defendant in the retention of counsel which might cause this Court to find an implied waiver of counsel.

Neither do we find in the sequence of events on the day of trial, as summarized at the outset of this opinion, any express or implied waiver of counsel by the defendant.

On original hearing, we found the denial of the motion for a continuance on the morning of trial before voir dire began, to have been within the realm of a trial judge’s discretion. So it was. However at the point thereafter when the questioning on voir dire began and it became obvious that defense counsel was going to do nothing in the way of defending his client, it was the trial judge, not the defendant, who had the statutory duty and inherent power “to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done.” La. C.Cr.P. art. 17. The trial judge was not without recourse at that point.

In Wisenbaker at 428 So.2d at 792, n. 4, we noted three alternatives open to a trial judge when, as in that case, out-of-state counsel failed to appear for trial: (1) “re[quire] defendant to have a Louisiana lawyer enroll of record within a reasonable time; (2) ob[tain] a waiver of counsel, or (3) ap[point] counsel to represent defendant.” These options were equally open to the trial judge in the instant case. Admittedly choices one and three would have required the trial judge to grant a continuance, the very action sought and refused at the outset of trial. Possibly, too, as noted in Wisenbaker at 428 So.2d at 793, n. 9, the lawyer’s intentional lack of participation was a “ploy to force the continuance and [the lawyer] may be subject to some type of sanction. However, unless defendant was a party to such a plot, he cannot be viewed as having waived his right to counsel.” As we have concluded, the record in this case neither suggests nor supports a finding that this defendant was at fault or was party to any ploy to delay the trial.

Furthermore, the trial judge in this case had an additional option not available in Wisenbaker. The non-performing lawyer was in court before the judge. The trial judge could have ordered defense counsel to represent the defendant immediately and actively under penalty of contempt. La.C. Cr.P. arts. 17 and 20 et seq. If the trial judge had found the lawyer in contempt for failure to comply with his order, the judge could then have appointed other counsel to defend Brooks. This too would have forced a continuance, of course. . But for the judge to have done nothing in the face of no representation resulted in the defendant’s being denied his right to assistance of counsel at trial. That denial of the defendant’s right to the assistance of counsel at trial requires a reversal and remand for a new trial.

As we have stated in City of Baton Rouge v. Dees, 363 So.2d 530 at 532 and quoted with approval in Wisenbaker at 428 So.2d at 793: “[w]hatever may have been the court’s right to discipline counsel ..., the client cannot be penalized, by the loss of his constitutional right to legal representation at his trial, ...”

Decree

For the foregoing reasons, the defendant’s conviction and sentence are reversed and the case remanded to the district court for a new trial.

REVERSED; REMANDED.

      . At the time the continuance was requested, Mr. Cohn testified that he had quoted to defendant’s parents both a pretrial fee and an additional fee if the case went to trial. Tr. pp. 58-59. Apparently, defendant's family decided to retain Mr. Freeman once it was apparent that the case would go to trial.

      . Under the constitutional umbrella of the right to counsel, Brooks was denied the right to present a defense, to confront and cross examine the witnesses against him, and to present evidence, in addition to being denied the privilege of making an opening statement, of objecting to hearsay, and of delivering final argument in summation. His attorney's failure and refusal to participate at trial, then, was a serious matter. For example, there was an instance Of trial error involving the admission of hearsay testimony from which the defendant should have been protected by counsel.
      Brooks was charged with possession of marijuana with the intent to distribute. The quantity of marijuana of which he was found in possession, it could have been argued, was not so much as to establish conclusively an intent to distribute. At trial and without objection, Deputy Davidson testified that a confidential informant had told him that the defendant was "in the vicinity of the DeSoto Junior High School" in his car waiting for "some people there to sell some marijuana to.” With no lawyer participating in the defense of the case, this hearsay testimony came in without objection. It’s not being excluded, as it would have been with even a perfunctory objection, gave substance to the state's case which it would not otherwise have had.

      . As the state noted at the time, a directed verdict is inappropriate in criminal cases. Furthermore, its criminal counterpart, a motion for acquittal, is not available in jury trials. “In a trial by the judge alone the court shall enter a judgment of acquittal ...” La.C.Cr.P. art. 778. (emphasis provided)

      . Counsel for the defendant on the first hearing of his appeal was J. Stacey Freeman, the very counsel whom Brooks had retained to represent him at trial. Accordingly that counsel neither briefed nor identified the right to counsel constitutional issue for the Court, although Freeman did brief the assignment of error which raised it (Assignment of Error Number One, the denial of a continuance). Therefore while it can be argued with some merit that the constitutional issue was not abandoned, the matter was not squarely presented to this Court on original hearing and consequently was not treated in our original opinion. Present counsel, Wellborn Jack, was enrolled only after this case had been orally argued and submitted to this Court for a decision on December 2, 1983.

      . In State v. Wisenbaker, 428 So.2d 790 (La.1983), the defendant had three attorneys, two from Texas and one from Louisiana. On the day of trial, his two Texas lawyers did not appear and his Louisiana lawyer had withdrawn when his fee was not forthcoming. The trial judge denied the defendant's motion for a continuance and ordered the defendant to trial without counsel. This Court reversed, and remanded the case for a new trial, finding no conduct on the part of the defendant which would constitute a knowing and intelligent waiver of counsel.

      . On original hearing in this case, we gave the date of the motion to suppress hearing as July 10, 1981. July 10, 1981, was the date of the preliminary hearing.

      . In State v. McGowan, 359 So.2d 972 at 974 (La.1978), we said in dicta that an "implied waiver could conceivably arise in a case where defendant, clearly able to secure retained counsel persists in demanding court appointed counsel and desists from employing an attorney despite a reasonable opportunity to do so.” In State v. Wisenbaker, 428 So.2d 790 at 793, n. 10 (La.1983) we also said in dicta

      If an accused repeatedly fails to retain counsel for trial, or if he appears without counsel after being clearly and unequivocally warned by the trial court that the case will be tried regardless, such fact may support a finding of waiver. For example, see State v. Jacobs, 271 S.C. 126, 245 S.E.2d 606 (S.C.1978).

      . In some measure, the trial judge brought this dilemma upon himself by releasing Brooks’ former lawyer without ascertaining that the defendant had in his new counsel a lawyer who was prepared to participate in his trial on the merits without a continuance.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Eugene TOBIAS and John Wayne Simmons.
    No. 83-K-2541.
    Supreme Court of Louisiana.
    May 25, 1984.

      Harriette R. Merrell, Slidell, (for Simmons) Tristan Junius, New Orleans, (for Tobias) for applicants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., for respondent.
   BLANCHE, Justice.

Defendants were arrested for the murder of one Michael Henry in Orleans Parish. At trial, the jury found both defendants guilty of second degree murder, and both were accordingly sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. The convictions were affirmed on appeal, State v. Tobias, 441 So.2d 400 (La.App. 4th Cir. 1983), and defendants are now before this Court on writ of certiorari. We granted this application primarily for the purpose of considering the sufficiency of the evidence as to defendant Tobias. Having examined the assignments raised by defendant Simmons, we find them to be without merit and affirm his conviction.

FACTS

The murder for which defendants were convicted occurred in the early morning of September 19, 1981, outside Marie’s Bar on the corner of Felicity and Magnolia streets in New Orleans. The victim was found shot outside the bar and was transported to Charity Hospital where he died an hour later.

Defendants were initially implicated in the crime by a cousin of the victim, who provided police with their names and the name of a potential eyewitness, Percy Taylor. Taylor identified the pair in a photographic lineup and both men were subsequently arrested.

At trial, several individuals testified to seeing the victim in the company of the defendants inside the bar earlier in the evening. Percy Taylor, however, was the only eyewitness to the crime' itself. He testified that he saw defendants chasing another individual, Phillip Scott, down the street near the bar. Later, according to Taylor, he received a phone call from Scott that “Craft” and “Gene” (the alleged street names of the defendants) were after him. Taylor testified that he then left the bar to find his friend and saw the defendants arguing with the victim, and taunting him with a wine bottle. Simmons eventually pulled a pistol, waved it in the victim’s face, and taunted the victim. Tobias then purportedly stated “Keep on talking, you’re going to die, bitch.” Thereafter, Simmons fired the pistol at the victim, and both Tobias and Simmons quickly left.

Defendant Simmons testified in his own defense. He asserted that he had left Marie’s Bar well in advance of the shooting, and had gone with Tobias to finish work on some parade equipment for a social organization to which the two men belonged. Hé claimed to have heard the shot, walked around the corner to investigate, and later returned home.

SUFFICIENCY OF THE EVIDENCE

Although not raised as an assignment of error, this court requested briefing on the issue of sufficiency of the evidence as to defendant Tobias. Specifically, we were concerned with the issue of specific intent.

The only eyewitness testified that Simmons actually fired the shot which killed the victim. However, as R.S. 14:24 states, all persons concerned in the commission of the crime are principals. From the testimony, it is obvious that the two defendants were partners in their harassment of the victim. Both men were threatening the victim up to the moment when he was shot. Therefore, it is reasonable to conclude that Tobias was a principal in the murder of Michael Henry.

Nevertheless, not all principals are automatically guilty of the same grade of offense. State v. Holmes, 388 So.2d 722, 726 (La.1980). To convict Tobias of second degree murder, it was necessary to demonstrate specific intent on Tobias’ part to kill the victim.

The testimony of the eyewitness indicated that Tobias menaced the victim with a wine bottle, causing the victim to throw up his hands. Simmons then drew his pistol and brandished it at the victim, while Tobias reportedly shouted at the victim “Keep talking and you die.” Tr., p. 111. Immediately thereafter, Simmons fired the fatal shot. Finally, as the two men retreated, Tobias threatened to attack a bystander who shouted his objection to the shooting. Tr., p. 100.

Tobias’ actions certainly expressed animosity toward the victim. Whether they evidenced a specific intent to kill Henry is a more difficult question. On one hand, To-bias, while wanting to scare Henry, may have had no intention to kill him. On the other hand, Tobias and Simmons may have planned to kill Henry when they approached—Tobias’ statement before the murder supports such intent. We conclude that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the state proved Tobias’ intent to kill the victim beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and hold that the evidence was sufficient to support the verdict of second degree murder.

DECREE

For the foregoing reasons, the convictions and sentences of the defendants, John Wayne Simmons and Eugene Tobias are affirmed.

AFFIRMED.

LEMMON, J., concurs.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Ben Daly BRIDGEMAN, Respondent.
    No. 84-B-1039.
    Supreme Court of Louisiana.
    June 21, 1984.
   ORDER

Based upon the Court’s concurrence with the opinion of the Committee on Professional Responsibility that the crimes of which Ben Daly Bridgeman has been convicted constitute serious crimes, the necessary elements of which reflects upon said attorney’s moral fitness to practice law:

IT IS ORDERED BY THE COURT, that Ben Daly Bridgeman be and is hereby suspended from the practice of law and said attorney’s license to practice is hereby suspended.

It is further ordered that the Committee institute the necessary disciplinary proceedings against Ben Daly Bridgeman, seeking his disbarment or other remedy deemed appropriate, all in keeping with Article XV of the Articles of Incorporation of the Louisiana State Bar Association..


text:
    STATE of Louisiana v. Charles Ray SMITH.
    No. 84-K-0976.
    Supreme Court of Louisiana.
    June 25, 1984.
   PER CURIAM.

GRANTED. The sentences are vacated, and the case is remanded to the district court for a hearing before a different trial judge to determine whether there was a meeting of the minds between the defendant, the defense counsel, the prosecutor and the trial judge as to the plea bargain outlined in defendant’s affidavit of understanding. The judge shall then decide whether due process requires (a) that there be specific performance of the plea bargain, as outlined in defendant’s affidavit of understanding, or (b) that defendant be given the option to withdraw his pleas and proceed to trial on the original charges. In the event that the circumstances require only that defendant be allowed to withdraw his pleas, he should be tried with a different judge presiding. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Chalaire, 375 So.2d 107 (La.1979).


author: LEMMON, J.,

text:
    Merlin DARBY, Individually and as Natural Tutrix of His Minor Daughter, Denise Darby and Denise Darby v. Connie RICHARD, Southern Farm Bureau Casualty Ins. Company, Russell Robin, Individually and d/b/a Russell’s Food Center and Russell’s Food Center Mike and Billie Latolais, Individually and as Natural Turix of Their Minor Daughter Tina Latolais and Tina Latolais.
    No. 84-CC-1087.
    Supreme Court of Louisiana.
    June 25, 1984.
   In Re: RUSSELL F. ROBIN, d/b/a RUSSELL’S FOOD CENTER applying for Writ of Certiorari or Review to the Third Circuit Court of Appeal No. 84-340, Parish of St. Landry Twenty-Seventh Judicial District Court No. 88,223-D.

Granted. Ruling of the Court of Appeal is reversed. Case is remanded to that court to be reconsidered before a panel of at least five judges. La. Const. art. 5, § 8(B), Bank of New Orleans & Trust v. Seavey, 383 So.2d 354 (La.1980).

LEMMON, J.,

concurs for the reasons assigned in Bank of New Orleans & Trust Co. v. Seavey, 374 So.2d 696 (La.App. 4th Cir.1979), concurring in denial of application for reargument.


text:
    STATE of Louisiana v. Daniel UMPHLET, Ronda Caldwell, Debbie Bevins, Rebecca Dameron, Amanda Archer, Patricia Higgenbothan and Denise Smith.
    No. 84-KD-1090.
    Supreme Court of Louisiana.
    June 25, 1984.
   PER CURIAM.

Granted. When a party timely appeals, the failure of the clerk of court to lodge the record in the appellate court timely does not defeat the appeal. Accordingly, the appeal is reinstated, and the clerk of the district court is ordered to lodge the appeal in this Court within 30 days. The appeal will be consolidated, in this Court, with State v. Nuccio, 448 So.2d 105 (La.1984).


author: CALOGERO, Justice,

text:
    Carol D. HANKS v. DEPARTMENT OF STATE CIVIL SERVICE and Department of Natural Resources.
    No. 84-C-0898.
    Supreme Court of Louisiana.
    June 25, 1984.
   In Re: Carol D. Hanks, applying for Reconsideration of denied writ dated June 1, 1984, 450 So.2d 966; Court of Appeal First Circuit, No. 83-CA-0324; Civil Service Commission, No. 2901.

Case below: 444 So.2d 500.

Reconsideration denied.

CALOGERO, Justice,

concurs in denial of reconsideration.

While I voted to grant the writ the Court majority denied, the denial was not because of any problem with timely filing in this Court. The judgment is therefore definitive.


author: BLANCHE, Justice. LEMMON, J.,

text:
    Lois LACEY v. LOUISIANA COCA-COLA BOTTLING COMPANY, LTD.
    No. 84-C-0183.
    Supreme Court of Louisiana.
    June 25, 1984.
    James R. Hashek, Singerman, Cosentino, Toups & Troyer, for applicant.
    Kurt S. Blankenship, Arthur C. Reuter, Jr., Reuter & Reuter, New Orleans, for respondent.
   BLANCHE, Justice.

This is a suit for damages arising out of the consumption of a contaminated beverage. The trial court awarded judgment in favor of Mrs. Lacey in the amount of $6,633.95 against the Louisiana Coca-Cola Bottling Company, Ltd. (Bottler). The appellate court found that Mrs. Lacey failed to produce sufficient evidence to prove that the beverage in question was manufactured by the Bottler and reversed the judgment. 444 So.2d 769 (La.App. 4th Cir. 1984). The sole issue before this Court is the sufficiency of the evidence linking the contaminated beverage with the Bottler.

On the morning of January 2, 1981, Brian McCurley purchased for Lois Lacey a canned Fresca beverage from a Seven-Eleven Food Store located at 6050 Magazine Street in New Orleans. Later that day during lunch, Mrs. Lacey opened the can by pulling the metal tab and drank approximately one-quarter of the beverage. After experiencing a burning sensation on her tongue and in her throat, Mrs. Lacey spat the beverage into the sink. She then poured part of the remaining contents into a styrofoam cup and noticed that it was a greenish color instead of the normal clear color associated with that type of beverage. Other witnesses present at the incident testified at trial that the liquid had a foul acidic odor. Mrs. Lacey immediately went to the rest room to vomit. She then sought medical treatment. The remaining portion and the can were taken to the Seven-Eleven headquarters in Metairie, Louisiana, to be analyzed. Evidence indicated that the beverage had been contaminated.

Mrs. Lacey subsequently filed suit against Seven-Eleven’s parent corporation, the Southland Corporation, and their insurer. Mrs. Lacey also named Louisiana Coca-Cola Bottling Company, Ltd. as a defendant. The Southland Corporation filed a motion for summary judgment contending that, as retailer of a sealed container, they could not be liable for damages caused by the contents of that container unless they had knowledge of the defective nature of the contents. The motion was supported by an affidavit signed by Southland’s supervisor of the Seven-Eleven Food Store where the contaminated beverage was purchased which stated, in part, that the Southland Corporation purchases canned beverages, including Fresca, from the defendant Bottler for resale in Seven-Eleven Food Stores. The trial court granted the motion thereby dismissing the Southland Corporation from the suit. The case proceeded to trial against the Bottler who was ultimately cast in judgment for $6,633.95. The Fourth Circuit Court of Appeals reversed finding insufficient 'evidence to connect the Bottler with the contaminated beverage.

At trial, the only evidence presented by either party with respect to the eonexity between the Bottler and the contaminated beverage came from Mrs. Lacey’s unrebut-ted testimony. Mrs. Lacey testified that she was informed by the manager at the Seven-Eleven Food Store that the defendant was the bottler of the beverage in question. The Seven-Eleven Food Store employees to whom Mrs. Lacey had returned the beverage informed her that they would get in touch with the defendant Bottler about the contaminated beverage. On cross-examination, defense counsel himself perpetuated testimony from Mrs. Lacey which tended to establish the connection between the Bottler and the contaminated beverage.

Q. You can’t tell us today, can you, that Fresca is manufactured by Louisiana Coca-Cola; can you?
A. I brought the cold drink to the store, and they in turn told me at the Seven-Eleven store that it was a Coca-Cola product. They sent me to the Seven-Eleven store in Metairie where, in turn, they said I would get some papers to go to the doctor. At that time, the person there said they couldn’t give me any papers from the Seven-Eleven store to go to the doctor because it was a Coca-Cola Bottling product, and I would have to call them. That’s another thing that made me so upset. After consuming something I had drank and not knowing what it was and still not being able to get to the doctor because of somebody else’s product, and I was getting the run-around.
Q. All you had to go on was what someone at Seven-Eleven told you; is that correct?
A. (No response)
Q. Yes or not, and then explain.
A. At that time, I didn’t know who had put out Fresca, no, but I do now know who puts out Fresca.
Q. You know that because someone at Seven-Eleven told you that; isn’t that correct?
A. No, I know that because at that time, that instant, they told me Coca-Cola had put the cold drink out, but since then, I personally know that Coca-Cola put the cold drink out.
Q. How do you know that?
A. Because, number one, I have talked to Coca-Cola people, and they admitted they were the ones that put out the product.
Q. Give me specific times and dates that you discussed this with Coca-Cola.
A. Oh, gee, specific times and specific dates. When the incident happened, I called Coca-Cola trying to find out who did I get papers from to go to the doctor, and they in turn gave me a call back finally sometime. I don’t know the exact time or date they did call me back, but that was evidence to say they put the product out. They did pay for my medical, so that was proof enough there to say that they put the product out.
Q. You received a check for $288.00 already, haven’t you?
A. Yes, that’s what they paid for my different tests and stuff I had to have done.
Tr. pp. 37-39. (Emphasis added.)

On redirect, Mrs. Lacey confirmed that the $288.00 check came from the defendant Bottler.

The Bottler now argues that this $288.00 check was actually a settlement offer and, as such, cannot be used at trial as evidence to prove liability. See Champion v. Panel Era Mfg. Co., 410 So.2d 1230 (La.App. 3rd Cir.1982). In this ease, however, defendant did not object to this evidence and, in fact, actually initiated the discussion. As such, the trial court could properly take the testimony into account when weighing the evidence against the Bottler. After Mrs. Lacey testified, the defendant put forth no evidence to rebut Mrs. Lacey’s testimony.

In a civil case, the plaintiff’s burden is to prove her case by a preponderance of the evidence. This burden may be met by direct or circumstantial evidence. If, as in this case, circumstantial evidence is relied upon, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (La.1963).

Defendant Bottler argues that plaintiff never proved that the defendant was the bottler that manufactured the contaminated beverage that caused the plaintiff’s harm. The Bottler argues that it is possible that the contaminated beverage was supplied by a bottler other than the defendant. Mrs. Lacey’s testimony, however, points to only one bottler, the defendant. In this case, Mrs. Lacey’s testimony was never rebutted by the Bottler. Under such circumstances, we cannot say that the trial court abused its discretion or committed manifest error in finding the defendant liable.

DECREE

For the reasons stated, the judgment of the Fourth Circuit Court of Appeal is reversed and the judgment of the trial court is reinstated.

REVERSED.

LEMMON, J.,

concurs, believing that the case does not turn on circumstantial evidence, but rather on unrebutted hearsay evidence, given without objection, which constitutes a preponderance on the issue of the identity of the bottler.


text:
    STATE of Louisiana v. Shannon LUTZE.
    No. 84-K-0144.
    Supreme Court of Louisiana.
    June 25, 1984.
    John T. Bourgeois, Thibodaux, for defendant-applicánt.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., Stephen E. Caillouet, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

We granted writs in this case upon application of the defendant Shannon Lutze who complains that the Court of Appeal, on appeal from a judgment of bond forfeiture, should have set aside the trial court judgment ordering the forfeiture of her surety bond.

Defendant (and a surety) posted a $30,-000.00 personal surety bond to secure her release pending disposition of several criminal charges. She was later billed with only one charge, the offense of B-Drinking.

She appeared for arraignment with her attorney on October 26, 1981 and entered a not guilty plea. The minutes of court for that day reflect simply that a pre-trial conference was set for January 27, 1982.

On January 27, 1982, defendant’s attorney appeared, but defendant did not personally attend the pre-trial conference. Thereupon, on motion of the state the court ordered her bond forfeited and a bench warrant issued for Lutze’s arrest, returnable April 2, 1982. On February 5, 1982 the judgment of bond forfeiture was read and signed in open court.

On April 2, 1982, the bench warrant was returned unexecuted, and defendant did not appear. Her attorney appeared, however, as did the prosecuting attorney who thereupon entered a motion to nolle prosequi the charge, dismissing the prosecution against Lutze. The state also filed a motion that day to recall and vacate the bench warrant and to vacate the judgment of bond forfeiture. However, the motion was denied in both respects by the trial judge, who, on his own motion, ordered the bench warrant continued to May 26, 1982.

On July 16, 1982 the defendant, through her attorney, filed a motion, or contradictory rule, to withdraw the bench warrant and to cancel the surety bond forfeiture judgment on the basis that the case had been nolle prossed by the state on April 2, 1982 (just under two months after the judgment of bond forfeiture for non appearance). The judge denied defendant’s motion with reasons on December 8, 1982.

Defendant applied to the Court of Appeal for writs, but got only partial relief. The First Circuit Court of Appeal granted defendant’s writ in part and recalled and vacated the bench warrant for the reason that “the certified copy of the minutes of court do not reflect that defendant was ordered to personally appear at the pre-trial conference.” With respect to the judgment of bond forfeiture, the panel denied the writ application, asserting that the matter “is appealable as a civil proceeding to this Court_” State v. Lutze, No. 83-KW-0062 (La.App. 1st Cir.1983) (unpublished).

Thereafter, defendant did lodge a civil appeal to the First Circuit Court of Appeal contesting the bond forfeiture judgment. A different panel of that Court, however, rendered judgment, with one of three judges dissenting, affirming the trial judge’s refusal to vacate the judgment of bond forfeiture. State v. Lutze, 441 So.2d 1297 (La.App. 1st Cir.1983). In doing so, the court ignored its earlier finding that the trial court minutes did not indicate that the defendant had been personally ordered to appear at the pre-trial conference, the fundamental premise upon which the bond forfeiture judgment is based.

As correctly held by the Court of Appeal originally, wherein the court recalled and vacated the bench warrant, absent a minute entry indicating defendant’s personal appearance was required at the pre-triál conference, it was error to have ordered, because she did not appear at that conference, either a bench warrant issued for her arrest or her bond forfeited.

Decree

For the foregoing reasons the judgment of the trial court denying defendant’s motion to cancel the judgment of forfeiture of surety bond, and the judgment of the Court of Appeal affirming that judgment, are reversed; and it is ordered that the judgment of forfeiture awarding the State of Louisiana judgment against Shannon Lutze and her surety in solido, in the sum of $30,-000.00 with legal interest from date of forfeiture until paid, be and is hereby annulled, vacated and set aside.

DISTRICT COURT AND COURT OF APPEAL JUDGMENTS REVERSED; JUDGMENT OF FORFEITURE OF SURETY BOND ANNULLED, VACATED AND SET ASIDE.

      . As set forth in the trial court’s written reasons for judgment, defendant “was arrested on charges of two counts of obscenity, one count of ‘B-Drinking’, possession of marijuana and possession of quaaludes,” although the state later only filed a bill of information charging her with the crime of B-Drinking.


text:
    STATE of Louisiana ex rel. Steven GALLAGHER v. STATE of Louisiana.
    No. 84-KH-0985.
    Supreme Court of Louisiana.
    June 27, 1984.
    Reconsideration Granted July 27, 1984.
   IN RE: Steven Gallagher applying for Writ of Habeas Corpus, from Criminal District Court, Parish of Orleans, No. 289-817, Section “F”, Fourth Circuit Court of Appeal, No. K-2234.

Granted. The district court is ordered to grant relator mandatory credit for work performed under La.R.S. 15:571.10(A). The sheriff is ordered to exercise discretion on an individual basis on the issue of whether relator should be granted a diminution of sentence under La.R.S. 15:571.10(B).

MARCUS, BLANCHE and WATSON, JJ., dissent, being of the opinion that the matter is entirely within the sheriff’s discretion. LSA-RS 15:571.10(B).


author: LEMMON, Justice,

text:
    STATE of Louisiana v. Davis John VICTORIAN.
    No. 84-K-1022.
    Supreme Court of Louisiana.
    June 27, 1984.
   In Re: Davis John Victorian, applying for Writs of Certiorari, Court of Appeal, Third Circuit, 448 So.2d 1304 (1984); 14th Judicial District Court, Parish of Calcasieu, No. 12305-82.

Denied.

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

LEMMON, Justice,

dissents.

The excellent opinions by the majority and the dissenter indicate that this Court should address this difficult issue.


author: PER CURIAM. •

text:
    STATE of Louisiana v. Eugene DEAN.
    No. 83-KA-0281.
    Supreme Court of Louisiana.
    June 27, 1984.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Nancy Sharpe, Asst. Dist. Attys., for plaintiff-appellee.
    Dwight Doskey, New Orleans, Orleans Indigent Defender Program; for defendant-appellant.
   PER CURIAM. •

Affirmed.

DIXON, C.J., dissents and is of the opinion that, on the record before us, the sentence is excessive.


text:
    STATE of Louisiana v. Claude MARQUER, Sr., Claude Marquer, Jr., and Esther Marquer.
    No. 84-K-0789.
    Supreme Court of Louisiana.
    May 23, 1984.
   In re Claude Marquer, Sr., Claude Mar-quer, Jr., and Esther Marquer, applying for writ of certiorari and stay order to the Court of Appeal, Fourth Circuit, No. KA-0377; Criminal District Court, Parish of Orleans, No. 281-487.

Case below: 446 So.2d 1258.

Denied. The application is moot.


text:
    STATE of Louisiana v. James C. RILEY.
    No. 84-K-0859.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re State of Louisiana, applying for a writ of certiorari or review to the Fourth Circuit Court of Appeal, No. KA-0948, Criminal District Court, Parish of Orleans, No. 291-082.

Case below: 451 So.2d 15.

Denied.


text:
    STATE of Louisiana v. James P. TOMLINSON, III.
    No. 84-K-0974.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re James P. Tomlinson, III, applying for supervisory writ/writ of review, to the Second Circuit Court of Appeal, No. 15826-KA; 4th Judicial District Court, Parish of Ouachita, No. 40-782, Division C.

Case below: 450 So.2d 380.

Granted.


text:
    STATE of Louisiana v. Joseph CATHEY and Tonia Nolan.
    No. 84-KK-1078.
    Supreme Court of Louisiana.
    June 7, 1984.
   In re Joseph Cathey and Tonia Nolan, applying for supervisory writs of certiorari, prohibition, mandamus and stay order to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 83-1875; Fifth Circuit Court of Appeal, No. 84-K-285.

Denied. Adequate remedy by appeal in event of conviction.


text:
    STATE of Louisiana ex rel. McBeth MITCHELL v. CLERK OF COURT, CRIMINAL DIST. COURT, PARISH OF ORLEANS.
    No. 84-KH-0589.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re McBeth Mitchell, applying for writ of habeas corpus to the Criminal District Court, Parish of Orleans, No. 248-648.

Granted. Boykin transcript ordered furnished by July 15, 1984.


text:
    Elizabeth WUERTZ v. David CRAIG: John Doe and Mary Doe.
    No. 84-C-0925.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Elizabeth Wuertz, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. CA-1377; Civil District Court, Parish of Orleans, No. 82-5375.

Case below: 449 So.2d 673.

Granted.


text:
    STATE of Louisiana v. Wildred BATISTE, Jr.
    No. 84-KH-1040.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Wildred Batiste, Jr., applying for remedial writ to the Criminal District Court, Parish of Orleans.

Granted for the sole purpose of transferring to the Court of Appeal, Fourth Circuit.


text:
    Barbara Claire GROVES v. ROSEMOUND IMPROVEMENT ASS’N, INC., Lloyd L. Lindsey & Ruth Rhodes Lindsey.
    No. 84-CC-0916.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Barbara Claire Groves, applying for supervisory and remedial writs to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 236983, Division “D”. pirst Circuit Court of Appeal, No. CW-0493.

Granted in part; denied in part. Case remanded to the district court with instructions to the trial judge to decide the case on the merits, that is, to decide whether to annul or set aside the allegedly fraudulent transactions after a meeting of the shareholders, whatever the result, previously ordered by the trial judge; otherwise, denied.

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


text:
    Larry E. KINNEY v. Wanda HUTCHINSON, et al.
    No. 84-C-0936.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Larry E. Kinney, applying for writ of certiorari or review to the Fifth Circuit Court of Appeal, No. 83-CA-709, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 233-158.

Case below: 449 So.2d 696.

Not considered. Not timely filed. The judgment is definitive.


text:
    STATE of Louisiana, ex rel., Lester WILLIAMS v. John S. COVINGTON, Hon. Judge, Section “I”, 19th Judicial District Court, Parish of East Baton Rouge, Louisiana.
    No. 83-KH-1769.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Lester Williams, applying for writs of certiorari, prohibition, mandamus and habeas corpus, Parish of East Baton Rouge, No. 8-80-416.

Denied.


text:
    STATE of Louisiana, ex rel., Charles COLLINS v. CRIMINAL DIST. COURT, SECTION “H”, PARISH OF ORLEANS.
    No. 83-KH-1827.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Charles Collins, applying for writ of mandamus, Parish of Orleans, No. 252-944.

Denied. Moot.


text:
    CITIZENS, ELECTORS AND TAXPAYERS OF TANGIPAHOA PARISH v. Edward LAYRISSON, Sheriff of Tangipahoa Parish and the Tangipahoa Parish Police Jury; Charles “Buddy” Rogers, Joseph Giardina, Joseph Noto, Johnnie Santangelo, Lester Cutrer, Cyril Landry, Bill Fleet, Raymond Darcy, and Ronnie Bankston.
    No. 84-C-0874.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Edward Layrisson, Sheriff of Tan-gipahoa Parish and the Tangipahoa Parish Police Jury; Charles “Buddy” Rogers, Joseph Giardina, Joseph Noto, Johnnie San-tangelo, Lester Cutrer, Cyril Landry, Bill Fleet, Raymond Darcy, and Ronnie Bank-ston, applying for writ of certiorari, to the First Circuit Court of Appeal, No. 83-CA-0966, from the Twenty-First Judicial District Court, Parish of Tangipahoa, No. 68644.

Case below: 449 So.2d 613.

Denied.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    James Sidney CONNER, Jr. v. Kaylynn Kern CONNER.
    No. 84-C-0876.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Kaylynn Kern Conner, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-CA-0257, Parish of St. Tammany, Twenty-Second Judicial District Court, No. 64-479.

Cases below: 436 So.2d 591; 449 So.2d 10.

Denied.

DENNIS, J., would grant the writ.


text:
    Leo W. BARKER v. TANGI EXTERMINATING CO., et al.
    No. 84-C-0928.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Phillip and Bonnie Jenkins, applying for writ of review to the First Circuit Court of Appeal, No. 83-CA-0236, from the Twenty-First Judicial District Court, Parish of Tangipahoa, No. 56328.

Case below: 448 So.2d 690.

Denied.

WATSON, J., would grant as to the 3rd party demand against Tangi; otherwise he would deny.


text:
    STATE of Louisiana ex rel. Roosevelt WILLIAMS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KP-0930.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Roosevelt Williams, applying for supervisory writ, to the Twenty-First Judicial District Court, Parish of Tangipahoa, No. 44314.

Denied.


text:
    FAUSTINA PIPE LINE COMPANY v. Minos J. BROUSSARD, et al.
    No. 84-C-0940.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Faustina Pipe Line Company, applying for writ of certiorari and/or review to the Third Circuit Court of Appeal, Nos. 83-597 and 867; 15th Judicial District Court, Parish of Vermilion, No. 82-45319-1.

Cases below: 450 So.2d 17; 450 So.2d 24.

Denied.

MARCUS, J., would grant on the issue of attorney fees.


text:
    Gus DUHON v. SLICKLINE, INC., Guy A. Duhon and Keith M. Duhon.
    No. 84-C-0942.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Slickline, Inc., Guy A. Duhon and Keith M. Duhon, applying for writ of cer-tiorari, to review the Third Circuit Court of Appeal, No. 83-626; Parish of Lafayette, Fifteenth Judicial District Court, No. 82-3068-H.

Case below: 449 So.2d 1147.

Denied.


text:
    STATE of Louisiana v. Earl WILLIAMS.
    No. 84-KK-0946.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re State of Louisiana, Through the District Attorney, applying for writ of review, to the Third Circuit Court of Appeal, No. K83-1098; Parish of Acadia, Fifteenth Judicial District Court, No. T83S-1622.

Case below: 449 So.2d 744.

Denied.


text:
    STATE of Louisiana v. Winfred BURGE.
    No. 84-KK-0949.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Winfred Burge, applying for writ of certiorari, prohibition and mandamus to the Third Circuit Court of Appeal, No. K83-1063; 38th Judicial District Court, Parish of Cameron, No. 37-455.

Case below: 449 So.2d 196.

Denied.

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


text:
    Raymond GRANGER v. FORD, BACON & DAVIS CONST. COMPANY, and Aetna Life and Casualty Company.
    No. 84-C-0950.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Raymond Granger, applying for writs of certiorari and review to the Third Circuit Court of Appeal, No. 83-827, from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 82-4208.

Case below: 448 So.2d 913.

Denied.


text:
    STATE of Louisiana v. Roger SILVA.
    No. 84-K-0979.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Roger Silva, applying for writs of certiorari and review, to the Fourth Circuit Court of Appeal, Nos. KA-1200 and KA-1201, from the Criminal District Court, Parish of Orleans, No. 294-474, Section “J.”

Case below: 447 So.2d 1242.

Denied.


text:
    STATE of Louisiana v. Albert Troy SEYMOUR.
    No. 84-K-0981.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Albert Troy Seymour, applying for writ of certiorari, to the Second Circuit Court of Appeal, No. 16196-KA; Parish of Madison, 6th Judicial District Court, No. 38783.

Case below: 449 So.2d 1189.

Denied.


text:
    STATE of Louisiana ex rel. Dennis PETERS v. Hon. Dewaine SEAL, Clerk of Court, Hon. France W. Watts, Judge, and Hon. John W. Greene, Judge.
    No. 84-KH-0986.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Dennis Peters, applying for remedial writ to the Twenty-Second Judicial District Court, Parish of Washington, No. 30929.

Denied.


text:
    STATE of Louisiana v. Kevin RHODES and Lawrence Bright.
    No. 84-KK-0999.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re State of Louisiana, applying for writ of certiorari, to the Criminal District Court, Parish of Orleans, No. 296-949, from the Fourth Circuit Court of Appeal, No. K 1355.

Case below: 449 So.2d 1381.

Denied.

DIXON, C.J., would grant and remand to Court of Appeal for a full opinion which explains their decision in light of the transcript.


text:
    Willie SCOTT v. RYAN-WALSH STEVEDORING CO.
    No. 84-C-1017.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Willie Scott, applying for writ of certiorari, to the Fourth Circuit Court of Appeal, No. CA-1379, from Civil District Court, Parish of Orleans, No. 82-546.

Case below: 447 So.2d 1260.

Denied.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Winnie Louise CASBORN v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 84-C-1019.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Winnie Louise Casborn, applying for writ of review to the Fourth Circuit Court of Appeal, No. CA-1135, Parish of Orleans Civil District Court, No. 82-7289.

Case below: 448 So.2d 176.

Denied. The result is correct.

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


text:
    STATE of Louisiana v. Joseph D. RIDEAUX, Sr.
    No. 84-KH-1028.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Joseph D. Rideaux, Sr., applying for remedial writs to the Fifteenth Judicial District Court, Parish of Lafayette.

Denied.


text:
    Frank LOPEZ, et al. v. CITY OF SHREVEPORT, et al.
    No. 84-C-1030.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Frank Lopez, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, No. 16180-CA; First Judicial District Court, Parish of Cad-do, No. 290784.

Case below: 449 So.2d 1184.

Denied.

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


text:
    STATE of Louisiana v. Phillip Byron CARTEE.
    No. 84-K-0995.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Phillip Byron Cartee, applying for writ of certiorari, to the Court of Appeal, Second Circuit, No. 15901-KA; Parish of Ouachita, 4th Judicial District Court, No. 41171.

Case below: 450 So.2d 785.

Denied.


text:
    STATE of Louisiana v. Leslie LOWENFIELD.
    No. 84-KH-1013.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Leslie Lowenfield, applying for remedial writ, to the 24th Judicial District Court, Parish of Jefferson.

Denied. Appeal pending.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS v. LULING INDUS. PARK, INC. now St. Charles Holding, Inc.
    No. 84-CD-1023.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re St. Charles Holding, Inc., applying for supervisory and remedial writs to the 29th Judicial District Court, Parish of St. Charles, No. 14633.

Denied.

DENNIS, J., would grant to answer the core question in this and other litigation in order to terminate all cases expeditiously.


text:
    STATE of Louisiana v. H.M. “Mike” CANNON.
    No. 84-KD-1033.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re H.M. “Mike” Cannon, applying for supervisory writ of review, mandamus and certiorari and for a stay order, to the 19th Judicial District Court, Parish of East Baton Rouge, No. 7-79-451.

Granted.


text:
    STATE of Louisiana v. Maxie Floyd PALMERTREE.
    No. 84-K-0980.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Maxie Floyd Palmertree, applying for writ of certiorari, review, supervisory, prohibition and mandamus to the Second Circuit Court of Appeal, No. 16258-KA, from the Fourth Judicial District Court, Parish of Ouachita, No. 41877, Division “B”.

Case below: 450 So.2d 785.

Denied.


text:
    STATE of Louisiana v. George MAYO.
    No. 84-K-1024.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re State of Louisiana, applying for writ of certiorari to the Fourth Circuit Court of Appeal, No. KA-1302, Parish of Orleans, Criminal District Court, No. 295-530.

Case below: 450 So.2d 718.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. John A. BATES.
    No. 84-K-1051.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re John A. Bates, applying for writ of certiorari, to the Court of Appeal, Second Circuit, No. 16175-KA; Parish of De Soto, 11th Judicial District Court, No. 50084.

Case below: 450 So.2d 785.

Denied.


text:
    STATE of Louisiana v. William LALANNE.
    No. 84-KH-1073.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re William Lalanne, applying for remedial writs to the Fourteenth Judicial District Court, Parish of Calcasieu, No. 2858-84, from the Third Circuit Court of Appeal, No. K 84342.

Granted. Transferred to 3rd Circuit, Court of Appeal for consideration.


text:
    STATE of Louisiana, ex rel. Christopher a. McAlister V. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-2203.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Christopher A. McAlister, applying for writs of certiorari, habeas corpus and mandamus, 19th Judicial District Court Parish of E. Baton Rouge, No. 2-27-191.

Denied.


text:
    STATE of Louisiana ex rel. Christopher McALISTER v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 84-KP-1010.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Christopher McAlister, applying for writs of certiorari and review, to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 2-77-191.

Denied.


text:
    STATE of Louisiana ex rel. James PORTER v. STATE of Louisiana.
    No. 84-KH-0959.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re James Porter, applying for writ of mandamus to the Criminal District Court, No. 278-168, Section “G”, Parish of Orleans.

Granted to transfer to Orleans Criminal District Court.


text:
    In re Patrick Hough HARRINGTON.
    No. 84-OB-0242.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Patrick H. Harrington, applying for Motion to Alter Phraseology of this Court's Order of February 10, 1984, 445 So.2d 442, to Correct Errors of Calculation, or for Alternative Relief.

It is ordered that the Committee on Bar Admissions of the Louisiana State Bar Association permit petitioner to take the bar examination on July 16, 18, and 20, 1984, but that the Committee withhold the results of the bar examination pending further orders of the Court.

It is further ordered that relator be permitted to submit evidence of his rehabilitation after July 14.


text:
    Albert Joseph HENRY v. ALLIED INDUS. SERVICE, INC. et al.
    No. 84-C-0742.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Albert Joseph Henry, applying for reconsideration of writ not considered on May 4,1984, 449 So.2d 1353, from the Fifth Circuit Court of Appeal, No. 83-CA-675, Parish of St. John the Baptist, Twenty-Ninth Judicial District Court, No. 11561.

Reconsideration denied.

CALOGERO, J., concurs as Friday, April 13 was the 31st day.


text:
    STATE ex rel. James E. SMITH v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0788.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re James E. Smith, applying for reconsideration of writ denied May 11, 1984, 450 So.2d 359, Parish of Tangipahoa Twenty-First Judicial District Court.

Reconsideration denied.


text:
    STATE of Louisiana v. Cheryl BERIDON.
    No. 84-K-0851.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Cheryl Beridon, applying for writs of certiorari, prohibition and mandamus to the First Circuit Court of Appeal, No. 83-KA-0209, from the Thirty-Second Judicial District Court, Parish of Terrebonne, No. 78042.

Case below: 449 So.2d 2.

Denied.


text:
    TRAVELERS INDEM. CO. v. EXXON PIPELINE CO. and M.P. Evans, Jr.
    No. 84-C-0879.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Travelers Indemnity Company, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-CA-0583, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 237488.

Case below: 449 So.2d 1074.

Denied. Result is correct.


text:
    STATE of Louisiana v. Ronnie BEARDEN and Edwardo Arroyo.
    No. 84-K-0918.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Ronnie Bearden and Edwardo Arroyo, applying for certiorari, or writ of review, to the Court of Appeal, Fifth Circuit, No. 83-KA-714; 24th Judicial District Court, Parish of Jefferson, No. 83-285.

Case below: 449 So.2d 1109.

Denied.


text:
    W. Harold TINNEY, Sr. v. W.J. TESSIER REALTORS, INC.
    No. 84-C-0998.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re W.J. Tessier Realtors, Inc., applying for writ of certiorari and review to the Court of Appeal, Fourth Circuit, No. CA-1063; Parish of Orleans, Civil District Court, No. 78-17072.

Case below: 447 So.2d 1099.

Denied.

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


text:
    STATE of Louisiana v. Henry DeFRAITES.
    No. 84-K-1018.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Henry DeFraites, applying for writ of certiorari, to the Fourth Circuit Court of Appeal, No. KA-1213, from the Criminal District Court, Parish of Orleans, No. 279-581.

Case below: 449 So.2d 540.

Denied.


text:
    STATE of Louisiana v. Levi MAXIE.
    No. 84-K-1044.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Levi Maxie, applying for writ of review to the Second Circuit Court of Appeal, No. 16050, Parish of Caddo, First Judicial District Court, No. 122191.

Case below: 449 So.2d 1202.

Denied.


text:
    STATE ex rel. Frank WALGAMOTTE v. Warden Ross MAGGIO.
    No. 84-KH-1059.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Frank Walgamotte, applying for writs of certiorari, habeas corpus, mandamus and supervisory writ, to the 29th Judicial District Court, Parish of St. John the Baptist, No. 29285, Division C.

Denied.


text:
    STATE of Louisiana v. Joseph CATHEY.
    No. 84-KK-1079.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Joseph Cathey, applying for supervisory writs of certiorari, prohibition and mandamus and a stay order, to the Twenty-Fourth District Court, Parish of Jefferson, No. 83-1801; Fifth Circuit Court of Appeal, No. 84-K-284.

Denied.


text:
    STATE of Louisiana v. Fred J. WINKLER.
    No. 84-KH-1164.
    Supreme Court of Louisiana.
    June 21, 1984.
   In re Fred J. Winkler, applying for writ of habeas corpus to the 38 th Judicial District Court, Parish of Cameron.

Granted and transferred to Court of Appeal, 3rd Circuit, for consideration.


author: WATKINS, Judge.

text:
    Beverly V. BARANCO v. Laura Mae Joseph BARANCO.
    No. 83 CW 1354.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 24, 1984.
    Patrick J. Cooper, and Thomas Benton, Baton Rouge, for plaintiff-appellee Beverly V. Baranco, Jr.
    Fernin F. Eaton, Baton Rouge, for defendant-appellant Laura Mae Joseph Bar-anco.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

We granted writs to review the propriety of the granting by the trial court of a stay of a rule for arrearages in permanent alimony filed by Mrs. Laura Mae Joseph Bar-anco pending a hearing of the rule filed by Dr. Beverly V. Baranco, her former husband, to terminate alimony retroactively.

The parties were divorced in 1976. A consent decree awarded Mrs. Baranco the sum of $400.00 per month. Both parties reserved the right to challenge the adequacy or inadequacy of the award, and also to raise the question of fault.

On October 8, 1980, the husband filed a rule to terminate alimony on the ground the wife was at fault. Attempt was made to serve citation upon Mrs. Baranco several times immediately thereafter, but evidently service of citation upon Mrs. Baranco was not made at that time, and in fact was not effected until October 11, 1983.

A hearing on the rule for arrearages filed by the wife and the rule to terminate alimony filed by the husband was held on October 6, 1983. Both parties stipulated that arrearages, if owed, came to $12,-000.00. The husband attempted by weak circumstantial evidence to prove that the wife had attempted to evade service of citation after the husband’s rule was first filed October 8, 1980. The trial court held the husband had failed to prove that the wife had evaded service of citation. We have read the entire record and agree that the contention was not proved.

Nevertheless, the trial court stayed the rule for arrearages until the rule to terminate alimony was tried. This was clearly improper. The right to alimony is a vested right, and no discretion is vested in the trial court to deny the right to have past due alimony made executory. Hendershot v. Hendershot, 407 So.2d 93 (La.App. 2d Cir.1981); see also LSA-C.C.P. art. 3945.

For the foregoing reasons, the writs previously issued herein are made peremptory and the trial court’s stay of the rule for arrearages filed by Laura Mae Joseph Bar-anco is set aside. The trial court is directed to issue a judgment for arrearages forthwith. The cost of the writs shall be borne by Dr. Beverly V. Baranco.

WRITS MADE PEREMPTORY.