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

text:
    CITY OF WINTER PARK, a municipal corporation, Appellant, v. Louis J. MONTESI, Appellee.
    No. 83-222.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.

      Steven D. Hutton of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for appellant.
    David C. Lanigan of Pino, Knox & Smith, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The City of Winter Park appeals from an order permanently enjoining it from selling sinkhole photographs. The trial court found that the city, in selling such photographs, was engaged in a proprietary function which served no legitimate municipal or public purpose. It also found that the city did not apply to itself, as a municipal corporation, the regulations that are by law applicable to the business activities engaged in by Montesi, a private entrepreneur who also sold sinkhole photographs.

The facts of this ease are “bottomed” on a large sinkhole which developed in Winter Park on May 9, 1981, and instantly became an attraction for local residents and tourists. Montesi began selling photographs of the sinkhole from a store located on Fairbanks Avenue which was within one hundred yards of the sinkhole. In mid-June, 1981, the city rejected Monte'si’s request to conduct retail sales from a table on private property nearer the sinkhole. The city rejected the request because the property, was zoned partly for office use only (which classification prohibits retail sales) and partly for commercial use (which permits retail sales only from an enclosed building). Following this rejection, the city constructed a screened enclosure on private property, adjacent to the property Montesi sought to use. On July 9th, the city began selling sinkhole photographs from the enclosure. Four days later, the enclosure was moved to a nearby public park. Sales continued until entry of a temporary injunction against the city on August 20, 1981.

The city argues that the trial court erred in finding that it was not performing an activity within the powers of a municipal corporation in this state.

Article VIII, section 2(b) of the Florida Constitution, provides that:

Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law.

The broad nature of this grant of power was recognized by the Florida Supreme Court in State v. City of Sunrise, 354 So.2d 1206, 1209 (Fla.1978), when the court noted that:

Article VIII, Section 2, Florida Constitution, expressly grants to every municipality in this state authority to conduct municipal government, perform municipal functions, and render municipal services. The only limitation on that power is that it must be exercised for a valid ‘municipal purpose.’ It would follow that municipalities are not dependent upon the Legislature for further authorization. Legislative statutes are relevant only to determine limitations of authority.

See also City of Boca Raton v. Gidman, 440 So.2d 1277, 1280 (Fla.1983).

Chapter 166, Florida Statutes (1981), known as the “Municipal Home Rule Powers Act” re-emphasizes the broad grant of power given to municipalities in section 166.021:

(1) As provided in article VIII, section 2(b) of the state constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.
(4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the constitution ....

As stated in Gidman, whenever a municipality exercises its powers, a two-tiered question is presented. First, was the action taken for a municipal purpose? If so, was that action expressly prohibited by the constitution, general or special law, or county charter? 440 So.2d at 1280. Here, there was no finding below, nor have we been able to discover, any constitutional provision or enactment which prohibits a city from selling souvenir photographs such as the ones in this case. Thus, the only question is whether such sales constitute a municipal purpose.

Section 166.021(2), defines “municipal purpose” as “any activity or power which may be exercised by the state or its political subdivision.” In determining whether an activity is a valid “municipal purpose”, review of case law regarding what constitutes a “municipal purpose” is necessary.

Recently, in Gidman, the supreme court held that provision for day care educational facilities is a valid municipal purpose. The court noted that the term “municipal purpose” has been broadly interpreted and has included such activities as maintenance and operation of a radio broadcasting system by a city. See State v. City of Jacksonville, 50 So.2d 532 (Fla.1951). In City of Jacksonville, the court stated:

Though there'was a time when a municipal purpose was restricted to police protection or such enterprises as were strictly governmental that concept has been very much expanded and a municipal purpose may now comprehend all activities essential to the health, morals, protection and welfare of the municipality.

50 So.2d at 535.

Other cases have upheld a city’s power to construct and operate a parking garage, Gate City Garage v. City of Jacksonville, 66 So.2d 653 (Fla.1953), build and operate a marina and civic auditorium, Panama City v. State, 93 So.2d 608 (Fla.1957), acquire and maintain a golf course, West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361 (1929), provide fishing facilities in a public park and gain revenue by leasing a portion of the park to a business firm for construction and operation of a fishing pier, Sunny Isles Fishing Pier v. Dade County, 79 So.2d 667 (Fla.1955) and own and operate an auditorium, including booking attractions for the auditorium. Starlight Corp. v. City of Miami Beach, 57 So.2d 6 (Fla.1952). See also Panama City v. Seven Seas Restaurant, Inc., 180 So.2d 190 (Fla. 1st DCA 1965) (Panama City empowered to furnish catering services to organizations renting city civic center). These cases indicate that not only does a municipality in Florida have the power to engage in proprietary functions so long as such power is exercised for “municipal purposes” but also the mere fact that the city operated service competes with a privately owned business does not invalidate the city’s enterprise. See Starlight Corp. v. City of Miami Beach; Gate City Garage v. City of Jacksonville.

In State v. City of Miami, 379 So.2d 651 (Fla.1980), the supreme court, in validating revenue bonds to finance a convention center, found that the facility served a “public purpose” in that it would provide a forum for educational, civic and commercial activities and would increase tourism and trade. While that case dealt with the term “public purpose,” it is instructive on the issue here. See Gate City Garage v. City of Jacksonville (wherein the supreme court indicated that the phrases “municipal purpose” and “public purpose” are similar). In another case, City of Jacksonville v. Oldham, 112 Fla. 502, 150 So. 619 (1933), the supreme court held that a city may levy taxes to promote and advertise the community.

Considering the evidence here in light of these cases, we note there was testimony from the city manager that the photographs of the sinkhole were initially made for educational and scientific purposes and that they were sold by the city in response to demand from the public, including teachers, engineers, city residents and tourists. This testimony establishes that the city, in selling pictures of an unusual natural phenomenon within its corporate limits was furthering the educational needs of the community as well as transmitting information about the city to others, which has the logical effect of promoting knowledge about the city and increasing tourism to the area. Under the case law above, the sale of the pictures constituted a valid municipal purpose.

Montesi claims that State v. City of Miami and other eases cited above stand for the proposition that a city may act where there is need of a collective effort by a public entity because private enterprise could not or was not likely to take as effective action as could be taken by the city. Montesi claims that here private enterprise was just as capable of selling the souvenirs and there was no need for the city to undertake such activity. However, this is not the test for determining whether an activity is a municipal or public purpose and the cases clearly indicate this. For instance, in Sunny Isles Fishing Pier v. Dade County, Gate City Garage v. City of Jacksonville and Starlight Corp. v. City of Miami Beach, the complaining parties were private businesses already in existence which were providing identical services to those sought to be undertaken by the municipalities. The supreme court on each occasion upheld the cities' authority to engage in such activities and as noted above, in Starlight Corp., and Gate City Garage, specifically declared that where such activities served a public or municipal purpose, it was not a valid objection that the city would be engaged in competition with private business.

The remaining question is whether the city could be enjoined for failing to apply to itself the regulations which were applicable to Montesi. When a municipality operates in its proprietary capacity, it is governed by the same laws and may exercise the same rights as a private corporation engaged in a similar undertaking. Hamler v. City of Jacksonville, 97 Fla. 807, 122 So. 220 (1929); Edris v. Sebring Utilities Commission, 237 So.2d 585 (Fla. 2d DCA 1970).

First, Montesi claims that the city did not pay rent for the use of private property. This argument has no merit because at the time of the injunction, sales were no longer being made from private property. Also, the question of rent is a matter of concern only between the landowner and the city.

Second, the claim that the city failed to file under section 865.09, Florida Statutes (1981), the Fictitious Name Statute, also has no substance because there were no allegations or proof that the city was using a fictitious name.

Montesi’s final claim that the city engaged in unfair competition and violated anti-trust laws by not allowing him to sell such photographs on private property near the sinkhole cannot be supported. Montesi was in no way prevented or restricted from selling sinkhole photographs from any location so long as he complied with applicable zoning laws. The record indicates that the sales activity of the city did not violate the applicable zoning restrictions.

We conclude that the sale of the photographs in this instance served a valid municipal purpose and that the city did not engage in improper conduct. Therefore, the order permanently enjoining the city is reversed.

REVERSED.

COBB and SHARP, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Florida, Appellant, v. Dennis ROSS, Appellee.
    No. 83-339.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.
    Jim Smith, Atty. Gen., Michael A. Pa-lecki, Sp. Asst. Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    Ronald E. Fox, Umatilla, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The state appeals from an order granting the motion of Dennis Ross for dismissal and discharge on speedy trial and due process grounds.

We have reviewed the record below and conclude that either Ross’ motion for continuance was granted or he failed to attend a proceeding at which his presence was required. In either event, he was not entitled to discharge under Florida Rule of Criminal Procedure 3.191.

We also find that the record fails to support the trial court’s conclusion that Ross’ constitutional speedy trial and due process rights were violated. Accordingly, we reverse the order and remand the case for further proceedings.

REVERSED and REMANDED.

DAUKSCH and COBB, JJ., concur.


author: COBB, Judge.

text:
    Leon L. SNOW, Appellant, v. STATE of Florida, Appellee.
    No. 83-828.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.

      James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

What mighty contests rise from trivial things! The sole issue on appeal is whether the lower court erred by assessing upon the defendant, adjudged insolvent, a five percent fine surcharge and court costs of $11.50. The surcharge is affirmed. See § 960.25, Fla.Stat. (1981); State v. Champe, 373 So.2d 874 (Fla.1978); Nash v. State, 434 So.2d 33 (Fla. 2d DCA), review denied, 438 So.2d 833 (Fla.1983). The record does not reflect that the lower court assessed court costs pursuant to section 27.56, Florida Statutes (1981); therefore, the assessment is STRICKEN. Jenkins v. State, 444 So.2d 947 (Fla.1984); Anderson v. State, 415 So.2d 49 (Fla. 2d DCA 1982). In all other respects, the judgment and sentence are AFFIRMED.

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

      . Alexander Pope, The Rape of the Lock (1712). 448So.2d — 28


author: PER CURIAM.

text:
    Eugene McDUFFIE, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-944, 83-995.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Appellant-defendant was on probation as to two separate felony offenses when he was charged with the armed robbery of a Tape Deck Music Center. He was also charged with violation of his probation on account of the commission of the Tape Deck robbery and on account of an alleged failure to pay costs of supervision and of allegedly being in possession of a knife as a weapon (apparently the weapon in the Tape Deck armed robbery).

After defendant was convicted of the Tape Deck robbery, his counsel made a demand for discovery in the probation violation cases. The prosecutor failed to timely respond. However, before the hearing on the violation of probation charges, the prosecutor listed as witnesses and evidence the name of the assistant state attorney who prosecuted the Tape Deck robbery, the name of appellant’s probation officer and certified copies of defendant’s Tape Deck robbery conviction. The trial court denied a defense motion that all of the state’s witnesses be excluded from testifying, as a sanction for the state’s untimely discovery response. The defendant's probation was revoked and, on this appeal, he contends that the trial court committed reversible error in exercising its discretion and denying the sanction sought for the state’s discovery violation without conducting a full and adequate hearing as to whether the discovery violation was inadvertent or willful, trivial or substantial, and whether it affected the defendant’s ability to prepare and defend, citing Richardson v. State, 246 So.2d 771 (Fla.1971).

Considering that the only issue on the probation violation charges was the identification of the defendant as the person on probation and as the person convicted of the Tape Deck robbery and that the obvious witnesses and evidence as to the identity issue were provided before the probation violation hearing and no actual prejudice was shown, we hold that, even without an evidentiary hearing, the trial court did not err in considering the state’s discovery violations in this probation violation case to be technical, trivial, insignificant and harmless. See Cuciak v. State, 410 So.2d 916 (Fla.1982).

The record suggests that the trial court relied only on the Tape Deck robbery conviction in finding a violation of probation. However, the two written orders revoking probation recite as grounds the failure to pay the cost of supervision charge and the knife possession charge as well as the Tape Deck robbery. Accordingly, our affirmance of the orders revoking probation in these two cases is without prejudice to the defendant to apply to the trial court to amend and correct its orders in these particulars.

AFFIRMED.

DAUKSCH, SHARP and COWART, JJ., concur.


text:
    Fred HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-284.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.
    Fred Harvey, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. See Muhammad v. State, 426 So.2d 533 (Fla.1982); McNeal v. State, 409 So.2d 528 (Fla. 5th DCA 1982).

FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.


author: PER CURIAM. COWART, Judge,

text:
    Thomas Guy NOBILE, Appellant, v. STATE of Florida, Appellee.
    No. 84-392.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.
    Thomas Guy Nobile, pro se.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from an order denying post conviction relief sought under Rule 3.850. Because the initial petition coupled with the motion for rehearing are sufficient to warrant a hearing, we reverse the order and remand the motion for a hearing.

REVERSED AND REMANDED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The record on appeal consisting of a transcript of proceedings in the trial court shows that the defendant was charged with the burglary of a dwelling while armed with a dangerous weapon, a knife (a first degree felony punishable by imprisonment for a term of years not exceeding life imprisonment under section 810.02(2)(b), Florida Statutes) and that the State offered to waive the weapon aspect of the charge, and to accept a nolo contendere plea to the reduced charge of burglary of a dwelling (a second degree felony under section 810.-02(3), punishable under section 775.-082(3)(c), Florida Statutes, by imprisonment not exceeding fifteen years). The State further agreed to a five year “cap” or limitation on any prison sentence imposed. The defendant, who had three prior felony .convictions (two for burglary) and had served a total of seven and one-half years confinement in prison, expressly assured the court of his satisfaction with the services of his trial counsel, accepted the plea offer and entered a nolo contendere plea and was sentenced exactly in accord with the negotiated plea.

In a 3.850 motion the defendant now boldly states that the minutes of the hearing will reflect that he pled to a violation of section 810.08(2)(c), Florida Statutes, being the offense of trespass in a structure, a third degree felony subject to a minimum five year sentence and, that by telling him that the maximum sentence under section 810.08(2)(c) was fifteen years rather than five years his trial counsel misinformed him and is therefore “ineffective counsel” entitling the defendant to set aside his plea. Unfortunately the trial court denied the defendant’s 3.850 motion on the explicit ground that it did not substantially comply with Rule 3.850 in that while the motion was sworn, the factual matters contained in the memorandum of law attached and referred to in the motion, were not specifically verified. I would uphold the denial of the motion not for the reason given by the trial judge but because the transcript of the plea negotiations and of the acceptance of the defendant’s nolo contendere plea is completely adequate to refute the factual assertions in defendant’s motion and in his memorandum of law, which consists largely of erroneous assumptions and conclusions as to relevant and irrelevant legal principles.


text:
    Isaac BROWNLEE, Appellant, v. STATE of Florida, Appellee.
    No. 83-1680.
    District Court of Appeal of Florida, Second District.
    April 27, 1984.

      Jerry Hill, Public Defender, and Gerald 0. Johnson, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, 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, and we, therefore, affirm the judgments and sentences.

However, in the case sub judice, the trial court adjudged appellant insolvent. Thereafter, the court assessed costs against appellant in the amount of $10 pursuant to section 960.20, Florida Statutes (1981) (Crimes Compensation Trust Fund) and $2 pursuant to section 943.25(4), Florida Statutes (1981) (Law Enforcement Training and Correctional Officer Training Trust Fund). 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 these costs. This decision is without prejudice to the trial court assessing costs against the appellant in accordance with Jenkins.

CAMPBELL, A.C.J., and SCHOON-OVER and LEHAN, JJ., concur.


author: LEHAN, Judge.

text:
    Ricky Dale HURST, Appellant, v. STATE of Florida, Appellee.
    No. 83-1778.
    District Court of Appeal of Florida, Second District.
    April 27, 1984.
    Jerry Hill, Public Defender, and Gerald O. Johnson, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Appellant has too many concurrent convictions to enumerate. We affirm the judgments of conviction against the appellant but remand for correction of appellant’s written sentences to conform to the trial court’s oral pronouncement as to the sentences running concurrently with “any active sentence being served.” See Yates v. State, 429 So.2d 815 (Fla. 2d DCA 1983).

REMANDED FOR CORRECTION OF SENTENCE.

CAMPBELL, A.C.J., and SCHOON-OVER, J., concur.


text:
    Robert P. VOMACKA, M.D., Petitioner, v. Judith GREENHUT, Respondent.
    No. 84-143.
    District Court of Appeal of Florida, Second District.
    April 27, 1984.
    H. Dennis Rogers of Blake & Associates, P.A., Tampa, for petitioner.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, Walt Logan, St. Petersburg; and Wagner, Cunningham, Vaughan & McLaughlin, P.A., Tampa, for respondent.
   PER CURIAM.

Petition for writ of certiorari denied without prejudice to further reargue these issues at the trial or appellate levels.

GRIMES, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Robert P. VOMACKA, M.D., Petitioner, v. Raymond WONDERGEM, as personal representative of the Estate of Mildred Wondergem, deceased, Respondent.
    No. 84-183.
    District Court of Appeal of Florida, Second District.
    April 27, 1984.
    H. Dennis Rogers of Blake & Associates, P.A., Tampa, for petitioner.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, Walt Logan, St. Petersburg; and Wagner, Cunningham, Vaughan & McLaughlin, P.A., Tampa, for respondent.
   PER CURIAM.

Petition for writ of certiorari denied without prejudice to further reargue these issues at the trial or appellate levels.

GRIMES, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Juan Mario CAMCIO, Appellant, v. The STATE of Florida, Appellee.
    No. 83-290.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

The appellant has failed to show reversible error in the trial court’s ruling denying his motion to suppress a post-arrest statement. See State v. Delgado-Armenta, 429 So.2d 328 (Fla.1983); Keeton v. State, 427 So.2d 231 (Fla. 3d DCA 1983). Accordingly, the conviction on the charge of trafficking in methaqualone is hereby affirmed. The conviction and sentence on the charge of possession of methaqualone, a lesser included offense of the trafficking charge, is impermissible under the authority of Bell v. State, 437 So.2d 1057 (Fla.1983). Therefore, the conviction is hereby reversed and the sentence vacated.

Affirmed in part, reversed in part.


author: DELL, Judge.

text:
    J. David ROUNDTREE and Ernestine Roundtree, his wife, Appellants, v. J. Elliott SMITH, Appellee.
    No. 83-776.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Elaine F. Miller of Miller & Miller, P.A., West Palm Beach, for appellants.
    Freeman W. Barner, Jr., of Cromwell & Remsen, Riviera Beach, for appellee.
   DELL, Judge.

J. David Roundtree and Ernestine Roundtree appeal from an order dismissing the second amended complaint with prejudice. We reverse and remand.

The case concerns an option to purchase real property. Appellants and appellee entered into a lease-option on October 11, 1977. The lease provided in part:

The Owner hereby leases to the Tenant the ... property ... for the period of one month from October 1, 1977 at the monthly rental of Twenty-Five Dollars ($25.00) payment of which is to be made on the signing of this lease. Monthly payments are to be made on the first of each month to the Owner at the above address.
This lease is on a monthly basis and may be cancelled by either party as of the 1st of anymonth [sic] on one (1) months notice.
Also, the Tenant is given the right to purchase this property during the term of this lease for the sum of Thirty Five Thousand 00/100 Dollars ($35,000.00). Ten Thousand Dollars ($10,000.00) is to be in cash and the balance of ($25,000.00) Twenty Five Thousand Dollars to be paid off in 180 equal installments plus 8% interest.

On June 1, 1982, appellants sent a letter to appellee and indicated their intent to purchase the property pursuant to their agreement of October 11, 1977. On June 17, 1982, appellants’ attorney sent a contract for sale and purchase with a cashier’s check for $10,000 to appellee. Appellee refused and appellants brought suit. The second amended complaint requested specific performance under Count I and requested damages for breach of contract under Count II.

Appellee filed a motion to dismiss the second amended complaint for failure to state a cause of action. The trial court found the appellants were “hold-over tenants after expiration of the initial lease period of one month” and that “there was no existing option to purchase in the lease capable of being exercised ... in June, 1982.” The court then dismissed the second amended complaint with prejudice based on those findings and “other findings not specifically referenced herein.” Although we do not know what the “other findings” were, we do not agree with the findings expressed in the order.

Appellants allege that the option to purchase ran with the lease which was unexpired at the time appellants elected to exercise the option. Appellee, on the other hand, argues that the lease created a tenancy for a fixed period of one month which expired in November of 1977. Further, appellee contends that upon the expiration of the one month lease the appellants became hold-over tenants and that a “tenant cannot extend the duration of his option to purchase by holding over_” Gower-Goheen Realty, Inc. v. Braun, 215 So.2d 499, 500 (Fla. 2d DCA 1968).

In Gower-Goheen Realty, Inc., however, the parties did not contest the term of the lease or its expiration date. The provisions of the lease sub judice do not compel the interpretation that the lease created a tenancy for a fixed period of one month which expired in November of 1977. Although the first sentence states that the lease is “for the period of one month from October 1, 1977” that provision cannot be isolated from the rest of the lease. “In construing a lease, as in other contracts it is necessary for the court to gather the meaning of the parties from the whole instrument and not from a few lines taken here and there.” Berwick Corp. v. Kleinginna Investment Corp., 143 So.2d 684, 688 (Fla. 3d DCA 1962). Taken as a whole, the term of the lease is ambiguous on its face and cannot be construed as a matter of law.

It is a cardinal principle of contract construction that the meaning to be attached to the language of an instrument is a question of law to be answered by the trial court where such language is clear, plain, certain, undisputed, unambiguous, and susceptible to only a singular meaning or inference....
... The paramount concern in construing contracts is the intention of the parties .... The intent of the parties is derived from the language of the contract when such language is without ambiguity; however, if an ambiguity exists, parol evidence is properly admitted to resolve such ambiguity and explain the intention of the parties to the contract.

Royal Continental Hotels, Inc. v. Broward Vending, Inc., 404 So.2d 782, 783-84 (Fla. 4th DCA 1981) (citations omitted).

In summary, we find that the meaning of the lease provisions must be determined by the trier of fact. Additionally, we find that the complaint and the attached exhibits stated a sufficient cause of action. Therefore, the trial court erred in granting appel-lee’s motion to dismiss the second amended complaint with prejudice.

Accordingly, the order of the trial court is reversed and remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

ANSTEAD, C.J., and DOWNEY, J., concur.


author: LETTS, Judge.

text:
    STATE of Florida, Appellant, v. Brooke ALDRICH and Richard Taylor, Appellee.
    No. 83-1701.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler and Max Rudmann, Asst. Attys. Gen., West Palm Beach, for appellant.
    Charles H. Vaughan, Fort Lauderdale, for appellee.
   LETTS, Judge.

The defendant, claiming entrapment, filed a sworn motion to dismiss an information charging trafficking in cannabis in excess of one hundred pounds. The State filed a sworn traverse and presented testimony pursuant to Fla.R.Crim.P. 3.190(d) but the court nonetheless dismissed the information. We reverse.

We can dispose of this particular case easily. The State’s accompanying testimony indicated the defendants’ ready acquiescence in the commission of the crime thus rendering it error to hold that the defendants were, as a matter of law, entrapped, because the evidence as to any entrapment was far from clear and convincing. State v. Casper, 417 So.2d 263 (Fla. 1st DCA 1982).

REVERSED AND REMANDED.

ANSTEAD, C.J., and BERANEK, J., concur.

      . As an example, one defendant stated that he “dealt in large lots."


text:
    George M. KUBSKI and Nayda Kubski, his wife, Appellants, v. Conrad W. SCHAEFER, et al., Appellees.
    No. 83-912.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Stephen R. Koons of McGee, Jordan, Shuey, Koons, Schroeder & Morris, Lake Worth, for appellants.
    William G. Shofstall, Jr. of Casey & McBane, West Palm Beach, and Max Rud-mann of Martin Zevin, P.A., Boca Raton, for appellees.
   PER CURIAM.

Affirmed. We are in no position to disturb the findings of fact of the trial judge made in the face of conflicting evidence as to the existence and extent of termite infestation in appellees’ house and the related issue as to the valid cost of repair of any such damage. We also find no error by the trial court in allowing the appellee property owner to testify as to the existence and extent of termite infestation in the house.

ANSTEAD, C.J., and LETTS and BERA-NEK, JJ., concur.


text:
    Oleg TRETIAKOFF, Andree Tretiakoff, Elinfa, Inc. and Elinfa, S.A., Appellants, v. TRIFORMATION SYSTEMS, INC., a Florida corporation, and Guy Carbonneau, Appellees.
    No. 83-634.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Robb R. Maass and Elizabeth T. Maass of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, and G. Hamilton Loeb of Paul, Hastings, Janofsky & Walker, Washington, D.C., for appellants.
    Peter L. Dearing of Mahoney Hadlow & Adams, Jacksonville, for appellees.
   PER CURIAM.

We affirm the action of the trial court in imposing sanctions against the appellants for failure to comply with the rules of discovery and orders related thereto. Mercer v. Raine, 443 So.2d 944 (Fla.1983). Also see Georges v. Insurance Technicians, Inc., 448 So.2d 1185 (Fla. 4th DCA 1984). We believe that the appellants were at least a day late and a dollar short in their inadequate and tardy attempt to avoid the imposition of sanctions by reliance upon an otherwise valid provision of international law. In light of the fact that much of the discovery sought was not precluded by the treaty provisions ultimately relied upon, and the inadequate and tardy manner that the treaty provisions were brought to the attention of the trial court, we find no abuse of discretion by the court in imposing sanctions. Accordingly, the judgment of the trial court is affirmed.

ANSTEAD, C.J., and LETTS and GLICKSTEIN, JJ., concur.


author: BERANEK, Judge.

text:
    James Harold PHELAN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 84-214.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    C. Edward McGee, Jr., of Gillespie, McCormick, McFall, Gilbert & McGee, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Petitioner seeks prohibition against his continued prosecution for the offense of first degree murder. On September 21, 1983, the Broward County Grand Jury indicted James Phelan and Joan Gibby on a single offense of alleged first degree murder. Approximately six weeks later, the State announced a nol pros as to the defendant Gibby. Petitioner, James Phelan, as the remaining defendant filed a motion to dismiss asserting that the nol pros constituted an unauthorized “amendment” to the indictment. The trial court denied the motion to dismiss and petitioner seeks review by prohibition.

Petitioner cites Russell v. State, 349 So.2d 1224 (Fla. 2d DCA 1977), for the principle which prohibits a prosecutor from amending an indictment. The law seems clearly established that only the Grand Jury may amend an indictment. Also see Johnson v. State, 190 So.2d 811 (Fla. 4th DCA 1966).

The petitioner’s argument is actually twofold. It is initially asserted that the nol pros constituted an amendment to the indictment which divested the trial court of jurisdiction over the remaining defendant. Alternatively, petitioner contends that the deletion of the co-defendant from the prosecution will result in unfair prejudice to the petitioner during the actual trial if and when it occurs.

We initially reject the jurisdiction argument. Although it is clear that the Grand Jury alone can amend its indictment, we do not view the deletion of one defendant as a prohibited amendment. Indeed, the question of a joint trial or separate trials for the initially indicted co-defendants was never even addressed by the trial court. Petitioner herein might have sought and obtained a severance, and separate trials certainly would not have been tantamount to an amendment of the indictment. See Rule of Criminal Procedure 3.152.

Indeed, the State could have proceeded to trial against both defendants as initially charged and simply chosen not to present evidence as to one of the defendants. We conclude that the nol pros did not divest the trial court of jurisdiction to proceed against petitioner.

The petitioner’s second argument, that the nol pros will result in actual prejudice, cannot yet be answered. We would be guessing if we attempted to predict at this point how the presence or absence of the co-defendant in the indictment will affect the eventual trial. These matters have yet to be brought to the attention of the trial court, and the present ruling regarding jurisdiction certainly is no answer to the questions which may be presented regarding actual prejudice in the eventual trial.

PROHIBITION IS HEREBY DENIED.

GLICKSTEIN and HURLEY, JJ., concur.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Otto HELLMAN, Appellee.
    No. 83-1425.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellee.
   HERSEY, Judge.

The state appeals from an order granting a motion to suppress statements. The order appealed provides, in pertinent part, that “the Court is not convinced beyond a reasonable doubt that the statement was freely and voluntarily made It is apparent that the trial court was misled by the language of DeConingh v. State, 8 F.L.W. 153 (Fla.1983) which language was corrected in DeConingh v. State, 433 So.2d 501 (Fla.1983), holding that “[t]o be admissible, the state must show a confession to have been voluntary. The state was required to establish voluntariness by a preponderance of the evidence.” Id. at 503. The trial court having applied a more restrictive standard in respect to the admissibility of the statements than is required by the law, we reverse and remand to permit the trial court to reconsider the issue in light of this opinion and the appropriate standard. See State v. Bastardo, 347 So.2d 463 (Fla.2d DCA 1977).

REVERSED and REMANDED.

LETTS and BERANEK, JJ., concur.


text:
    Lawrence John KENDALL, Appellant, v. STATE of Florida, Appellee.
    No. 83-1636.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Lydia M. Valenti, and Richard G. Bartmon, Asst. Attys. Gen., West Palm Beach, for appel-lee.
   PER CURIAM.

Affirmed. Although we agree with appellant that the standards for determining competency to stand trial and for determining insanity are substantially different and that ordinarily evidence of a prior judicial finding of competency to stand trial in another case should not be admitted, we do not believe that harmful error has been demonstrated in this case by the admission of such evidence. While we believe that the judicial finding should not have been admitted, we do not agree that evidence of competency to stand trial is totally irrelevant to the issue of sanity presented to the jury. We also believe that appellant’s contention on appeal of prejudicial error is undermined by his failure to request an instruction delineating the difference between the concept of insanity as a defense and the concept of competency to stand trial, or to object to the instructions on the insanity defense which he now claims exacerbated the error in receiving the evidence of competency to stand trial.

More importantly, however, we believe that any error in admitting such evidence was rendered harmless by other evidence presented to the jury which explained the differences between the two concepts and the standards utilized to determine their existence. In addition the jury was presented with both lay and expert testimony on the issue of appellant’s sanity.

ANSTEAD, C.J., and LETTS and GLICKSTEIN, JJ., concur.


text:
    Kenneth T. PLACE, Petitioner, v. J.H. KUIPER and Robert Combs, d/b/a Vacation Shares International, Inc., Respondents.
    No. 84-232.
    District Court of Appeal of Florida, Fifth District.
    May 3, 1984.
    Kenneth T. Place, pro se.
    No appearance by respondents.
   PER CURIAM.

DENIED. See Mohican Valley, Inc. v. MacDonald, 443 So.2d 479 (Fla. 5th DCA 1984).

COBB, SHARP and COWART, JJ., concur.


author:
DENNIS, Justice.
     WATSON, Justice, CALOGERO, Justice,
      LEMMON, Justice, BLANCHE, Justice. PER CURIAM.

text:
    STATE of Louisiana v. John VAUGHN.
    No. 82-KA-1775.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Dissenting Opinion Oct. 28, 1983.
    Concurring Opinion Nov. 7, 1983.
    On Rehearing April 2, 1984.
    Rehearing Denied May 3, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., G. Earl Humphries, Ásst. Dist. Atty., for plaintiff-appellee.
    James S. Gravel, Harold A. Van Dyke, Gravel & Van Dyke, Alexandria, for defendant-appellant.
   DENNIS, Justice.

We are called upon in this case to decide whether the Confrontation Clauses require that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness, by cross-examination directed at an established pattern of her prior sexual conduct which tended to prove that she also consented to the conduct in issue, when such an impeachment would conflict with the state’s asserted interest in the encouragement of rape victims to report crimes and cooperate in prosecutions.

Defendant, John Vaughn, was indicted with aggravated rape, convicted by a jury of forcible rape, and sentenced to 15 years at hard labor, five years of which are without benefit of paróle, probation or suspension of sentence. Defendant appealed. We reverse, finding merit in his confrontation claim.

Defendant contends that he was denied his right to confront and cross-examine witnesses by the trial court’s preclusion of his cross-examination of the rape complainant about her prior sexual conduct. He argues that this constitutes reversible error because it prevented the introduction of evidence which, together with the complainant’s other admissions, would have shown that the sexual intercourse in question was with her consent. In order to convict of aggravated rape, the state must prove that the sexual intercourse was committed without the victim’s consent. La.R.S. 14:41, 42.

About two weeks before the alleged offense the 15 year old female complainant ran away from home. She had lived with her mother who ran a lounge with a boyfriend in Shreveport. After staying with some friends for about a week in Shreveport, the complainant left that city on Friday, September 12, 1980 with Bret Holden, whom she had met that day at a K-Mart, and a girl friend. Holden told the two young women that he was going to Alexandria and that he could find them a place to stay there. The trio hitched a ride with a trucker and eventually arrived in Alexandria. After reaching Alexandria the complainant spent at least one night in a cabin with Holden and another man. On Sunday, a couple with whom she had become acquainted took her to see the defendant Vaughn for the purpose of obtaining more permanent lodging. Vaughn permitted her to move into his house, provided her with food, and allowed her to call her mother on his telephone without giving her location. Vaughn also obtained an apartment which the complainant and another woman used during the day. At night, however, the complainant returned to Vaughn’s house where she voluntarily slept with him and two other women in the same bed.

The complainant admitted in her cross-examination that she had sexual intercourse with Vaughn on the night of September 15 and that she consented to the sexual act. She testified that during the early morning hours of September 18, however, she resisted his sexual advances, and that he forced her to have sexual intercourse without her consent by kicking her, knocking her against a dresser and pulling her hair. She further testified that later that evening she again consented to sexual intercourse with Vaughn, but she said that she consented only because she feared another beating. During the day on September 18, after the early morning sexual intercourse with Vaughn and before the second act of sexual intercourse with him that evening, the complainant took a short trip with another man to Lafayette. When asked why she did not take this opportunity to remove herself permanently from Vaughn’s house, she answered that she wanted to return there for her clothing.

During his cross-examination of the complainant the defense counsel was prevented, by state objections sustained by the court, from inquiring into her prior sexual conduct with another man in Grant Parish while she was en route to Alexandria. Although the defense attorney apprised the trial court of the nature of the evidence and its relevance to the defense that the complainant had consented to the sexual intercourse at issue, the trial court accepted the prosecutor’s contentions that such testimony should be excluded under the state’s rape shield law.

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The confrontation clause of our state constitution directly affords each accused the right “to confront and cross-examine the witness against him, ...” La. Const, art. 1 § 16.

Confrontation means more than being allowed to confront the witnesses. Our state constitution expressly guarantees a defendant the right to cross-examine adverse witnesses. Id. The U.S. Supreme Court cases construing the clause hold that a primary interest secured by it is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (citing Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’s story to test the witness’s perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness; Davis, supra, 415 U.S. at 316, 94 S.Ct. at 1110; State v. Hillard, 398 So.2d 1057 (La.1981); State v. Toledano, 391 So.2d 817 (La.1980).

The state contends that the cross-examination was correctly precluded under the rape shield law, La.R.S. 15:498, which provides:

Evidence of prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim’s relationship with the accused.

The state further argues that the trial court ruling did not deprive Vaughn of his right to confront and cross-examine his accuser.

Notwithstanding worthy legislative aims, rules excluding evidence cannot be mechanistically applied to deny admission of highly reliable and relevant evidence critical to an accused’s defense. See Davis, supra; Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Although the Supreme Court’s cases fail to provide any rule for determining when the Sixth Amendment compels the admission of evidence^ they imply that a “balancing of interests” approach to each case should be used to reconcile the competing interests involved. Davis, supra, 415 U.S. at 319, 94 S.Ct. at 1112; State v. Dawson, 392 So.2d 445, 449 (La.1980); State v. DeCuir 364 So.2d 946, 948-949 (La.1978) (concurring opinion); Note, 40 La.L.Rev. 268, 274 (1979).

By excluding evidence of a rape complainant’s reputation for chastity or sexual conduct with any person other than the accused, La.R.S. 15:498 serves important goals: it abates the victim’s ordeal at trial, lessens the possibility of unjust influence by inflammatory evidence, and encourages reports of rape. Thus, in balancing the invocation of the shield against the right of confrontation ,in a particular case, the shield should be given weight according to the degree to which it fulfills the purposes of the rape shield law in that case. Against this in each case must be weighed the extent to which the rape shield would exclude evidence which is genuinely relevant, highly probative, and critical to the accused’s defense. If the rape shield law in the particular ease fails to serve its purpose, overreaches its legitimate aim, or trenches upon the right to a fair trial, it must yield to the confrontation guarantees of our state and federal constitutions.

Applying this balancing approach, we conclude that the defendant was deprived of his constitutional right to confront and cross-examine witnesses because the cross-examination attempted by defense counsel was reasonably calculated to elicit evidence which was genuinely relevant, highly probative, and critical to the defense; and because the rape shield law did not fully serve its purposes in this case. The excluded evidence would have tended to demonstrate the complainant’s sexual promiscuity in the course of her running away from home. This evidence would have tended to show that her sexual intercourse with Vaughn was a part of this same pattern and was committed in furtherance of her running away from home. For this reason, and because she freely admitted to at least one act of consensual intercourse with Vaughn, the excluded evidence was highly probative of the proposition that each of her acts of intercourse with Vaughn was consensual. On the other hand, exclusion of the evidence in this case did not significantly promote the legitimate state interest in encouraging rape reports by insulating a rape victim’s reputation for chastity from attack by evidence of sexual misconduct unrelated to the offense. Evidence of the complainant’s conduct in engaging in the initial consensual act of intercourse with Vaughn, sleeping with him and two other women in the same bed, traveling with casual male acquaintances, and spending the night with two of them in a cabin was introduced without objection. Consequently, the complainant’s reputation for chastity was discredited by the other evidence and was not afforded any real protection by the assertion of the rape shield law to exclude the cross-examination at issue. Furthermore, the conduct about which the defense wished to cross-examine was not totally unrelated to the charged offense. It allegedly occurred only five days before the offense, with another casual male acquaintance, during an earlier stage of her running away from home.

The failure to permit the cross-examination was not harmless error. Harmless error depends on there being no reasonable possibility that the evidence complained of might have contributed to the conviction and upon the reviewing court’s ability to declare a belief that the error was harmless beyond a reasonable doubt. State v. Gibson, 391 So.2d 421 (La.1980). The scenario is that the complainant committed consensual sexual intercourse with defendant admittedly before and perhaps after the alleged rape. The complainant went on a trip to Lafayette before she had intercourse with the defendant for the last time. Despite the alleged rape and an opportunity to leave, she returned to defendant’s home where she was vulnerable to further sexual advances. The consensual sexual act with another man in Grant Parish would have completed the pattern: The complainant quickly consummated sexual acts with men she barely knew in furtherance of her running away from home. Had the jury been sensitive to a pattern of consensual sex, they may have been reluctant to perceive that 51-year-old Vaughn exercised undue influence over the 15-year-old. Since such undue influence may have occurred to the jury, evidence discrediting the complainant’s naiveté and showing a pattern of actual consent was highly relevant and probative.

We conclude there is a reasonable possibility that the error complained of here contributed to the conviction. Aside from the excluded evidence, the record contains substantial circumstantial evidence of her promiscuity and direct evidence of her consensual sexual intercourse with the defendant. We cannot say beyond a reasonable doubt that a reasonable jury would not have been persuaded to acquit the defendant after also hearing the excluded evidence.

The defendant’s conviction and sentence are reversed and the case is remanded for a new trial.

REVERSED AND REMANDED.

CALOGERO and WATSON, JJ., dissent and assign reasons.

BLANCHE, J., dissents for reasons assigned by WATSON, J.

LEMMON, J., subscribes to the opinion and assigns additional concurring reasons.

WATSON, Justice,

dissenting.

The majority holds that LSA-R.S. 15:498, “the rape shield law”, was erroneously applied in this case, violating defendant’s constitutional right of confrontation. I disagree.

Defendant was allowed to cross-examine the prosecuting witness at length about the fact that she had spent at least one night in a cabin with two men shortly prior to the alleged rape, and also concerning the fact that she had sexual intercourse with the defendant by consent on at least two occasions close in time to the alleged rape. However, the majority concludes that defendant was denied a basic constitutional right by being prevented from examining the fifteen year old complainant about her sexual relations with some other man in Grant Parish while enroute to Alexandria.

The majority calls this evidence “genuinely relevant, highly probative and critical to the defense”. Certainly it was not critical to the defense because the jury had heard substantial other evidence of the complainant’s sexual promiscuity, including her consensual relations with defendant. Certainly it was not genuinely relevant or highly probative. The fact that a female has had sex with “A” does not tend to prove one way or the other whether she had sex with “B”. The logic by which the ■excluded evidence becomes “highly probative” is not explained by the majority. In fact, it is not probative at all.

While confrontation is a fundamental constitutional right, the majority errs badly in reversing this conviction for failure to allow cross-examination concerning immaterial and non-probative matters.

Therefore, I respectfully dissent.

CALOGERO, Justice,

dissenting.

The majority determines that Louisiana’s rape shield law (La.R.S. 15:498) cannot be mechanically applied. Rather, a balancing approach must be utilized in determining whether its application in a given case will infringe upon a defendant’s sixth amendment confrontation rights. I agree.

In this portion of the opinion the majority forges a standard which satisfies the constitutional right to confront one's accusers without declaring unconstitutional the rape shield law, a statute which serves legitimate state interests. Evidence which is “crucial,” “critical,” or “vital” to an accused’s defense [Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) respectively] cannot constitutionally be excluded by the rape shield law regardless of the state interest advanced thereby.

Nevertheless, I dissent from the majority opinion because I disagree with the manner in which the balancing test has been applied in this case. The underlying primary rationale of rape shield laws is that evidence of the complainant’s prior sexual history is irrelevant to the issue presented at a rape trial, which is whether or not the defendant forced the victim to engage in sexual intercourse. The admission of evidence of the victim’s prior sexual conduct tends to confuse the issue in the trial by arousing the jury’s prejudices, and perhaps emotions, in a case in which the evidence has little or no relevance. Such is the case here, in my opinion.

Defendant complains that he was not permitted to present evidence of a prior instance of voluntary sexual intercourse which the victim had engaged in five days before the alleged offense, and with a man other than defendant. The majority concludes that the evidence should have been admitted because it was “genuinely relevant, highly probative and critical to the accused’s defense” in that it “would have tended to show that her sexual intercourse with Vaughn [defendant] was part of this same pattern and was committed in furtherance of her running away from home.”

Just to the contrary, the excluded evidence was precisely the type of evidence at which the, rape shield law is aimed. That is, the evidence would tend to arouse the jury's prejudices and distract their attention from the real issues. And, most importantly, it is irrelevant to the question of whether or not Vaughn forced the victim to have sexual intercourse with him on the occasion in question. The fact that a female may have consented to sexual intercourse with one male is too slight an indication to warrant the conclusion that she probably consented to sex with another male. Even if the jury heard evidence of a prior consensual act of sex with another man this would not have been predictive of the victim’s later consent, or made her any less the subject of a rape by force. The contrary notion is just what the Legislature attempted to dispel when they passed the rape shield law. While the Legislature may not be within their constitutional prerogative to announce for court application evidentiary rules which fly in the face of logic or human experience, just the reverse is the case here. In this case the rape shield law and its underlying premise are sound.

The majority states that evidence of “[t]he consensual sexual act with another man in Grant Parish would have completed the pattern: the complainant quickly consummated sexual acts with men she barely knew in furtherance of her running away from home.” While it may be true that the victim did consent to sex with casual acquaintances, this has nothing to do with the issue at trial, whether the defendant raped the victim on the occasion in question. The victim testified that she had had sexual intercourse with the defendant on the first night she met him and that it was with her consent. However, she further testified that three days later when she resisted his sexual advances, he forced her to have sexual intercourse without her consent by kicking her, knocking her against the dresser and pulling her hair. She also testified that later the same night, after taking a trip to Lafayette with another man, she returned to the defendant’s house and again had sexual intercourse with defendant, but this time, because she feared another violent attack, she consented. The victim’s entire involvement with the defendant, including voluntary sexual relations both before and after the alleged rape, is highly relevant and it was properly admitted at trial under the rape shield statute. On the other hand evidence that the victim had sexual intercourse with another man five days before the offense, on the facts of this case, simply does not add anything to the question of whether or not defendant forced the victim to have sexual intercourse with him as alleged. In my view, evidence of prior voluntary sexual intercourse with a different man was properly excluded, and the confrontation clause not offended.

There are, of course, instances in which, on balance, prior sex with a different person, actually relevant, must be admitted, lest the confrontation clause be offended. I simply disagree with the majority’s conclusion that this is such an instance.

Bad cases sometimes make bad law. This may be the case here. Defendant was convicted by a jury of forcible rape and sentenced to fifteen years at hard labor, five years of which are without benefit of parole, probation, or suspension of sentence. And the fifteen year old victim, no model of chastity, was a runaway who had prior and later sexual relations with the defendant. If the court has trouble with the conviction a proper focus might be on whether a rational jury could have found defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (Although defendant did not raise the argument this Court can still review the record to determine whether the evidence was sufficient. State v. Raymo, 419 So.2d 858 (La.1982); State ex rel. Womack v. Blackburn, 393 So.2d 1216 (La.1981); Id., 1220 (Lemmon, J., concurring).) It should not, however, reverse the conviction and order a new trial while in the process disregarding the rape shield law, where on balance the confrontation clause is not offended.

LEMMON, Justice,

concurring.

When a statute designed to protect a witness’ interest in preventing embarrassing disclosures of the witness’ past behavior precludes a defendant from offering evidence which is so highly probative of the witness’ credibility that the evidence is necessary to a fair determination of defendant’s guilt, the statute must yield to defendant’s constitutional right to confrontation.

In State v. Toledano, 391 So.2d 817 (La.1980), this court found that the statutes according confidentiality to records of juvenile adjudications must yield to the defendant’s right to confront the witnesses against him by revealing juvenile adjudications which have a significant adverse effect on the witness’ credibility. See Ped.R. Evid. § 609(d); State v. Hillard, 398 So.2d 1057 (La.1981).

In a case (such as the present one) involving the application of La.R.S. 15:498, it is necessary to balance the understandable legislative interest in preventing essentially irrelevant (or only marginally relevant) and potentially embarrassing disclosures about the rape victim-witness against defendant’s Sixth Amendment right to challenge the credibility of the witness on the question of consent and to offer evidence in his defense which tends to establish consent. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

This decision does not hold that the defendant may inquire into essentially irrelevant, unrelated and very embarrassing past sexual behavior of a person who alleges that she is a rape victim. However, when the defendant seeks to prove prior incidents which are distinctively similar to the conduct in question, particularly in terms of time, place and circumstances surrounding the conduct, then the prior incident's tendency to prove that the alleged victim behaved in a similar fashion on the occasion in question is enhanced to such a degree that excluding it would violate the confrontation rights of the accused. See Fed.R.Evid. § 412.

Just as in the ease of other crimes evidence, the trial court must balance the probative value against prejudice. In cases of prior sexual behavior offered to prove consent, the trial court must balance the probative value of the evidence against its tendency merely to show the victim’s general character with respect to chastity. To the extent that the evidence merely tends to show “unchaste” character, it should not be admitted, because the “circumstantial use” of character evidence is generally not favored. See Fed.R.Evid. §§ 404, 405. However, if the other consensual sexual behavior is so distinctively similar to the incident for which defendant was charged to enhance the probability that the victim consented, then the statute’s laudable purpose in protecting rape victims from possibly embarrassing disclosures of prior sexual conduct (and thereby encouraging persons to report rape) must yield to defendant’s Sixth Amendment rights. See State v. Decuir, 364 So.2d 946 (La.1978), Dennis, J., concurring.

ON REHEARING

BLANCHE, Justice.

In our original opinion, we reversed defendant’s conviction of forcible rape for the reason that defendant’s right to confront the witnesses against him was unconstitutionally restricted when he was not allowed to cross-examine the victim as to a single instance of prior sexual conduct with another individual. We granted the rehearing to consider whether, in this case, the Confrontation Clause of the Sixth Amendment was in fact impaired by the application of La.R.S. 15:498 to defendant’s cross-examination of the victim. We find that it was not, and reinstate the trial court’s verdict and sentence for the following reasons.

The facts of the case were fully stated in this Court’s original opinion, and need only be stated briefly here. The victim, a fifteen year old girl, left Shreveport on September 12,1980 in the company of one Bret Holden, a man she had met the same day. Holden, the victim and another girl hitchhiked to Alexandria, where Holden and the victim spent one night together in a cabin. Two days later, the victim met the defendant, who offered her food and lodging. On September 15, 1980, the victim engaged in consensual sexual intercourse with the defendant. Three days later, the victim resisted the defendant’s advances and was forced to have intercourse with the defendant in the presence of two other girls. Later that day, the victim consented to sex with the defendant, purportedly because she feared being beaten.

At trial, counsel for defendant was able to elicit from the victim the fact that she had voluntarily engaged in sexual intercourse with defendant both before and after the alleged rape. However, when defense counsel attempted to cross-examine the victim as to the night she spent with Holden, the trial court sustained the state’s objection that such an inquiry into the victim’s sexual conduct was expressly prohibited by the rape shield law. La.R.S. 15:498.

La.R.S. 15:498 was enacted by the legislature as a measure designed to encourage rape victims to testify by limiting the extent to which a defense lawyer could inquire into the details of the victim’s private life. On its face, the statute is couched in somewhat absolute terms, stating that:

Evidence of prior sexual conduct and reputation for chastity of a victim of a rape or carnal knowledge shall not be admissible except for incidents arising out of the victim’s relationship with the accused.

Strictly construed, R.S. 15:498 would indicate that evidence of prior sexual conduct is considered inadmissible with the single exception of relations with the accused. However, as this Court recognized in State v. Langendorfer, 389 So.2d 1271 (La.1980), there are instances where evidence of prior sexual conduct is admissible. In Langen-dorfer, supra, evidence was admissible to show that sperm found in the victim was the victim’s husband’s. The Court noted tht only the reputation for unchastity was intended to be excluded, and that relevant physical evidence exculpating the defendant must be admitted. 389 So.2d at 1274. See also Rule 412 Federal Rules of Evidence.

Defendant urges that evidence of repeated promiscuity ought to constitute another instance where prior sexual conduct is admissible. Otherwise, according to defendant, R.S. 15:498 would effectively deprive a defendant of his right to confront the witnesses against him.

The right to confrontation is recognized in both the state and federal constitutions. La. Const. Art. I, § 16, U.S. Const. Amend. VI. This right in Louisiana expressly includes the right to cross-examine the prosecution’s witnesses. La. Const. Art. I, § 16. See also Mattox v. U.S., 156 U.S. 237, 244, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895) and Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

As we stated on original hearing, rules such as R.S. 15:498 which exclude certain types of evidence “cannot be mechanistically applied to deny admission of highly reliable and relevant evidence critical to an accused’s defense.” See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Clearly, where highly relevant evidence is available, the State’s need to protect the victim from embarrassing cross-examination must be weighed against the probative value of the evidence to determine whether the right of confrontation is being infringed.

However, where the evidence sought to be admitted is not relevant, the right to confrontation is not affected and there is no need to impose a balancing test. Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. La.R.S. 15:441.

We conclude that evidence of a single instance of sexual intercourse between the victim and another individual 5 days prior to the rape is not relevant to a determination of whether the act with defendant was consensual. The fact that the victim consented to intercourse with another man is not probative of her subsequent conduct with defendant. Rather, were the evidence to be admitted, the victim would be confronted with the accusations of her own chastity, which cannot be shown to have any relation to the crime of rape.

In holding that the single instance of conduct in this case was not relevant to a determination of whether a rape occurred, we do not hold that a victim’s prior sexual history may never be relevant and subject to cross-examination. Nevertheless, before such evidence may be held admissible, the defendant must clearly demonstrate that the evidence of prior sexual conduct is genuinely probative of the issue of consent, rather than a reflection of the victim’s promiscuity.

DECREE

For these reasons, the judgment of this court on original hearing is reversed, and the conviction and sentence of the defendant, John Vaughn, are reinstated. REVERSED; original verdict reinstated.

WATSON, J., concurs but does not endorse the language of footnote one concerning matters not before the court.

DENNIS, J., dissents for the reasons assigned by the original majority opinion.

LEMMON, J., dissents.

ON APPLICATION FOR REHEARING

PER CURIAM.

The court has considered all of the assignments of error urged by the defendant to this Court and has found them to be without merit.

       Bailes, J. sitting for Justice Marcus.

      . La.R.S. 15:498: "Evidence of prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim's relationship with the accused." (Emphasis provided.)

      . Examples of situations in which evidence of prior sexual conduct is likely to be so crucial, critical, or vital to the accused’s defense that its admission is constitutionally required are: (1) where the past sexual acts are between the victim and the defendant (as is expressly permitted under La.R.S. 15:498); (2) where the past sexual acts are so distinctively similar as to constitute a modus operandi on the part of the victim, that is, that she has alleged rape before under similar circumstances which proved consensual; (3) where the prior sexual acts are of such frequency as to establish a habit or pattern of indiscriminate sex; (4) where the prosecution has presented evidence of the victim’s chastity which is not accurate; or (5) where the accused is attempting to defend on the basis that some other person is responsible (another source of the semen or injury). See 40 La.Law Rev., 268; Berger, Man’s Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum.L.Rev. 1, 98 (1977). These examples do not necessarily comprise an exclusive list.

      . Instances where prior sexual conduct could be relevant might exist, for example, where the victim has a history of false reporting of rapes, or where the victim has placed her chastity at issue and the evidence is offered solely for impeachment purposes.


author: DIXON, Chief Justice. MARCUS, Justice

text:
    Elsie Mae JONES v. Calvin SOILEAU.
    No. 83-C-1966.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    See also, 400 So.2d 658.

      Preston N. Aucoin, Gilbert Wayne Au-coin, Ville Platte, for applicant.
    Richard W. Vidrin, Fruge & Vidrine, Ville Platte, Jonathan C. Harris, Baton Rouge, amicus curiae, for respondents.
   DIXON, Chief Justice.

Elsie Mae Jones filed suit to recover damages from Calvin Soileau for the latter’s alleged malicious prosecution of Jones on four counts of issuing worthless checks. The trial court rendered judgment in her favor and awarded her $25,000 in damages. The court of appeal reversed, finding that there was probable cause to prosecute in the original case. 435 So.2d 503 (La.App. 1983). We reverse.

Jones is elderly, disabled and has a seventh grade education. She lives in Ville Platte on Supplemental Security income ($208.00 per month) and food stamps ($33.00 per month). Soileau owns Cal’s Grocery in Ville Platte. He is the city marshal, now in his third six year term. In October of 1979, Jones requested that Soi-leau allow her to buy groceries each month on credit. He agreed to do so if she would sign a counter check provided by him from a local bank for the amount of the purchase. Then, when Jones received her SSI check, he would cash it at the store, and hold out the balance due, and return the checks. Soileau testified that he told her he would institute criminal proceedings if she failed to pay at the first of the month. Soileau called these checks “hold checks.” Soileau’s wife, who managed the store, testified that this system, as well as Soileau’s traditional use of an account book, were simply ways of accounting for the purchases and charges of each credit customer.

Both parties testified that the question of whether Jones had an account at the bank never arose. Neither Soileau nor his employees ever filled in the space provided in the checks for an account number. No one ever asked her for one.

This system worked satisfactorily for several months. In February, 1980, however, Jones’ gas bill was $145.00, and she was ill and required medication. She also used her privilege on February 27 at Soi-leau’s store to get $100.00. Soileau charged her $10.00 interest for the last two days of February. She did not pay her February bill.

Some weeks later, Soileau deposited the checks. They were returned; there was no account as drawn. In May, 1980, he sent her demand notices. These notices were pre-printed, containing blanks for a name, date, amount of check and the reason for it not being honored. They stated that criminal charges would be filed if she did not pay within ten days. Soileau filled in the blanks and signed each form “Cal Soileau, City Marshal.” The total amount of the four checks was $315.78.

Soileau then went to see Jones. She offered to pay him $30.00 a month. He insisted on being paid in full. Soileau also discussed the matter with the city judge in Ville Platte (with whom he worked as city marshal). According to Soileau, the city judge “transferred” the case to district court. Soileau then went to Mr. Pucheu, the district attorney. After that, he talked to an assistant district attorney, Mr. Vid-rine. Finally, on October 17, 1980, another assistant district attorney, Mr. Rozas, filed a bill of information charging Jones with four counts of issuing worthless checks in violation of R.S. 14:71.

Soileau's memory began to fail him when asked about his visits to first the city judge, then the district attorney, then his assistants. He remembered only that Pu-cheu told him that he had a good charge. Pucheu likewise had no recollection of the specifics of the meeting. Soileau testified that he would not have filed a formal complaint if he had not been told by the district attorney’s office that the charge was a good one.

Trial was held some three weeks after the bill was filed. Counsel for Jones argued that the transaction involved an open account, not the issuing of worthless checks. The trial judge, however, ruled from the bench that the state had proved the elements of the crime beyond a reasonable doubt on three of the four counts. He dismissed one count because the check was signed by someone else “for Elsie Mae Jones.” He sentenced Jones to ten days in jail on each of the three counts, the terms to run consecutively. In addition, he fined her $50.00 plus court costs. He suspended the sentence on the condition that she make restitution within ten days.

This court granted writs and reversed, finding the statute inapplicable because the transactions were in the nature of an open account. In addition, the court found insufficient proof of intent to defraud. State v. Jones, 400 So.2d 658 (La.1981).

In the present suit, the record of the criminal case was introduced into evidence, and the trial judge heard the testimony of both parties, Soileau’s wife, and Pucheu. In his reasons for judgment, he referred to the previous conviction and sentence and the reversal by this court. He found a “wanton and reckless disregard” of Jones’ rights by Soileau and that Soileau “failed to exercise the caution and inquiry required by law before filing criminal charges.” Finding all the elements for the action to be established by the record, he awarded her $25,000 in damages.

The court of appeal reversed, holding that it would be anomalous to find that Soileau had no probable cause to file a complaint when the trial judge found Jones guilty beyond a reasonable doubt on three of four counts.

The jurisprudence of the state recognizes a civil cause of action, based on fault under C.C. 2315, in favor of one “whose liberty has been interfered with in an unwarranted manner.” F. Stone, 12 La.Civil Law Treatise, Tort Doctrine, §§ 200-01, at 264-66 (1977). Like any other delict under C.C. 2315, such an “interference” must be based on fault of the defendant which causes the damage complained of in order for the plaintiff to recover. In Graf v. McCrory Corp., 368 So.2d 1217, 1218 (La.App.1979) (Lemmon, J.), the defendant refused to drop criminal charges unless the plaintiff would release it from civil liability. The court emphasized that the unreasonableness of the defendant’s actions under these circumstances is the key to determining fault in a malicious prosecution case just as in any other case based on C.C. 2315-16.

Nevertheless, in Eusant v. Unity Industrial Life Ins., 195 La. 347, 351-52, 196 So. 554, 556 (1940), the court, quoting from an encyclopedia, stated that the elements of a malicious prosecution action are: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff. This test has been reaffirmed by this court on several occasions, most recently in Hibernia National Bank v. Bolleter, 390 So.2d 842, 843 (La.1980).

The first three elements, the court of appeal found, are satisfied. The court of appeal reversed the trial court with respect to probable cause because of certain evi-dentiary presumptions which are controlling in other states. Jones v. Soileau, 435 So.2d 503 (La.App.1983). Citing an encyclopedia and the Restatement of Torts, it held that probable cause was conclusively established by the previous conviction unless fraud, perjury or other corrupt means are shown. Id. at 506. See also W. Pros-ser, Law of Torts, § 119, at 846 (4th ed. 1971).

The applicable principles for determining probable cause were nevertheless correctly cited by the court of appeal from Coleman v. The Kroger Co., 371 So.2d 1186, 1188 (La.App.1979), writ denied, 372 So.2d 1041 (La.1979). The crucial determination is whether Soileau had an honest and reasonable belief in the guilt of Jones at the time he pressed charges. Sandoz v. Veazie, 106 La. 202, 30 So. 767 (1901). In applying these principles, a court may take into account events subsequent to the filing of the criminal charge. These are, however, simply additional pieces of evidence which comprise the entirety of the circumstances which it is the court’s duty to review. A previous conviction is no more “conclusive” on this issue than is the subsequent reversal by this court or the subsequent finding of no probable cause by the trial court in the present proceeding.

In this case, the trial judge had the record of the criminal proceeding before him. In addition, he heard the live testimony of the parties and of their witnesses. Except for the “presumptions” adopted by the court of appeal, there could be no claim that he failed to give proper evidentiary value to the record of the criminal case.

Soileau must have known that Jones had no bank account. He conceived the scheme to provide himself with a credible threat for collection purposes. The facts could not have given rise to an honest and reasonable belief in the guilt of Jones. When the threat proved to be insufficient to obtain payment in full (she did offer to pay $30.00 a month), he began to take steps to make good on the threat by going from first one official to another to see about filing charges.

Louisiana courts have, however, extended a qualified immunity to a defendant who files charges after seeking the advice of an attorney. Johnson v. Pearce, 313 So.2d 812, 816 (La.1975); Eusant v. Unity Industrial Life Ins., supra. The immunity operates, however, only when the advice of the attorney is based on full disclosure of all facts. Eusant v. Unity Industrial Life Ins., supra. See also Bladg v. Giacomino, 170 La. 638, 128 So. 661 (1930).

In the present case, the trial judge must have concluded that such a full disclosure was not made and that Soileau did not seek advice in good faith. Bladg v. Gia-comino, supra. Neither Soileau nor Pu-cheu remembered the substance of their conversations. Pucheu did testify that he knew that “hold checks” were not punishable under R.S. 14:71. He claimed, however, that a 1976 amendment to the statute would support a prosecution on the facts disclosed to him. The amendment (Acts 1976, No. 651) did away with the requirement of contemporaneous issuing of the check and delivery of the goods. The amendment, however, is irrelevant to the actual facts. In fact, the prosecutor in the criminal case established the contemporaneous signing of the “check” and the delivery of the goods or cash. Pucheu’s interpretation of the 1976 amendment, despite Jones' defense from the beginning that this was an open account transaction, was never made in the criminal case, either at trial or before this court.

In light of the sketchy recall of both Soileau and Pucheu, the trial judge must have inferred that Soileau simply presented the three district attorneys with checks marked no account as drawn and asked if he could charge Jones with issuing worthless checks. Such an inference would be consistent with the theory which the state attempted to prove at trial. Therefore, the qualified immunity does not attach to Soi-leau’s actions.

The fifth element is malice. It will be inferred when there is an absence of probable cause “... resulting from wanton and reckless disregard of the rights of the party sued, evincing absence of that caution and inquiry a party should employ before filing suit ...” Hibernia National Bank v. Bolleter, supra, at 844. Soileau knew that his ordinary civil remedies were of little value in attempting to collect from his customers who fell behind. So he created his own security device for the collection of debts on an open account. He signed the demand letters in his official capacity as city marshal. He then refused to negotiate with Jones and insisted on full payment. Such actions were clearly done with an intent to use the baseless criminal charge to collect from Jones. Hibernia National Bank v. Bolleter, supra. Under these circumstances, malice is inferred. Such an attempt to misuse an office of public trust for private ends, as well as to misuse the criminal process for the enforcement of civil claims, remains an intolerable abuse in this state.

The sixth element, damages, is also presumed when the other five elements are established. Hibernia National Bank v. Bolleter, supra. In the present ease, the trial judge had “no doubt ... that plaintiff suffered extreme mental anguish, humiliation, embarrassment, etc. as she went throiigh an entire criminal trial, resulting in a conviction and sentence, and that she is entitled to substantial damages for the malicious prosecution brought against her by the defendant.” He then awarded her $25,000.

C.C. 1934(3) gives the trial judge “much discretion” in assessing damages in the case of an offense or quasi offense. This court will not disturb an award absent a clear abuse of discretion under the particular circumstances of the case. Reck v. Stevens, 373 So.2d 498 (La.1979). Damage awards, however, in malicious prosecution suits should be compensatory only. Robinson v. Goudchaux’s, 307 So.2d 287, 291 (La.1975). There is no doubt that Jones suffered anguish and humiliation as a result of Soileau’s actions. In an appropriate case, the trial judge’s award would be proper. However, the record in this case does not support such an award. Much of the publicity apparently occurred when Jones filed this suit. No newspaper accounts or other documentation was introduced. Jones spent no time in jail and was never formally arrested. She testified that her blood sugar “acted up,” but there was no other proof of this nor of any expenses which it may have caused. Her attorney’s fees in the criminal action were not documented. In light of the record and the compensatory nature of the damage award in such cases, an award of $5,000 is adequate.

Accordingly, the judgment of the court of appeal is reversed, and judgment in the amount of $5,000 is rendered in favor of plaintiff Elsie Mae Jones and against defendant Calvin Soileau; costs are assessed against the defendant.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

I agree with the majority view of the states that the conviction of the accused by a trial court, although reversed by an appellate tribunal, conclusively establishes the existence of probable cause unless the conviction was obtained by fraud, perjury or other corrupt means. Accordingly, I respectfully dissent.

      . Nothing in the record reflects such a "transfer.” At best, Soileau was likely told simply to take the matter up with the district attorney.

      . In particular, this court, early in its history, held that "[t]he use of criminal process to enforce a civil claim is an intolerable abuse, even when the claim exists." Cannell v. Michel, 6 La.Ann. 577, 578 (1851). When the claim is essentially civil in nature, the proper approach is to seek redress in civil courts. Id. See also Graf v. McCrory Corp., supra; Lewin v. First Paratransit Corp., 387 So.2d 1254, 1256 (La.App.1980); Joyner v. Weaver, 337 So.2d 635, 637 (La.App.1976) (Watson, J.). The abuse of the criminal process to enforce civil claims is even more reprehensible when an officer of the state or its subdivisions makes such a threat in his official capacity. This court recently disciplined a justice of the peace for precisely such abuses. In re Wilkes, 403 So.2d 35 (La.1981).

      . As noted in Joyner v. Weaver, supra, at 636-37, the courts have expressed dissatisfaction with such "common law strictures” in light of the broad notion of fault under C.C. 2315. See also Leaman & Co. v. Victory Iron Works, 411 So.2d 666, 669 (La.App.1982).

      . Grant v. Deuel, 3 Rob. 17 (1842), cited by the court of appeal, illustrates this principle and does not establish the common law presumptions as held by the court of appeal.

      . The potential arbitrariness of mechanically applied, formal presumptions is clearly illustrated in the present case. The trial judge in the criminal case dismissed one of the four counts against Jones because the state failed to prove the authorization of the person signing the check for Jones. The presumption of probable cause would not attach as to this count, and a court could then theoretically reach the issue of probable cause and find for Jones on this count alone.