author: CALOGERO, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Alex LATHERS.
    No. 82-KA-2059.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Bob Hester, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michelle Fournet, Jeff Clames, Asst. Public Defenders, Baton Rouge, for defendant-appellant.
   CALOGERO, Justice.

Defendant Alex Lathers was charged by grand jury indictment with the crime of aggravated rape in violation of La.R.S. 14:42. Following trial, the jury returned a verdict of guilty of forcible rape. La.R.S. 14:42.1. Thereafter, the trial judge sentenced defendant to serve the maximum sentence, forty years at hard labor and ordered that it all be served without benefit of parole, probation or suspension of sentence. Defendant appealed, arguing only that his sentence was excessive. Finding that the trial judge had not complied with statutory sentencing guidelines (La.C.Cr.P. art. 894.1), this Court unanimously vacated the sentence and remanded the case to the trial court for resentencing. State v. Lathers, 414 So.2d 678 (La.1982). On remand, the trial judge again imposed the maximum sentence prescribed for the offense, forty years at hard labor, without benefit of parole, probation or suspension of sentence for the entire term. On appeal from this sentence, defendant again argues that his sentence is excessive.

La.R.S. 14:42.1, under which defendant was convicted, provides:

Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.

The basic principles of appellate review of sentences under our state constitution are well settled. La.Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. In accordance, therewith, in State v. Sepulvado, 367 So.2d 762 (La.1979), we held that “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable by this court on appellate review of his conviction.” This Court has also recognized that a punishment is unconstitutionally excessive if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Sims, 410 So.2d 1082; (La.1982); State v. Johnson, 406 So.2d 569 (La.1981); State v. Kersey, 406 So.2d 555 (La.1981); State v. Snider, 406 So.2d 209 (La.1981); State v. Russell, 397 So.2d 1319 (La.1981); State v. Williams, 397 So.2d 1287 (La.1981); State v. Beavers, 382 So.2d 943 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). See also Solem, Warden, South Dakota State Penitentiary v. Helm, _ U.S. _, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 1909, 49 L.Ed.2d 859 (1976); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

There are several factors which are useful in determining whether the sentence by its excessive severity or length is greatly disproportionate to the underlying offense. Some of these factors are the nature of the offense and the offender (i.e., the harm caused or threatened to the victim as well as the culpability and character of the offender) and the sentences imposed for the commission of the same crime in other jurisdictions. Solem v. Helm, supra; State v. Telsee, supra. Disproportionality analysis is cumulative and focuses on a combination of these factors.

In considering the nature of the offense and the offender, we have held that the statutory grounds for the selection and imposition of a sentence, La.C.Cr.P. art. 894.1, provide helpful criteria. The goal of the legislative scheme embodied in this article is to tailor the individual sentence imposed on the particular defendant to the particular circumstances of that given case. State v. Telsee, supra; State v. Jackson, 360 So.2d 842 (La.1978). The result is that the maximum sentences are to be reserved for the most egregious and blameworthy of offenders within a class. State v. Jones, 398 So.2d 1049 (La.1981).

In the instant case, the facts adduced at trial revealed the following: On July 10, 1980, at approximately 2:00 a.m., Jane Doe (fictitious name) was driving a pick-up truck through Scotlandville on her way home from Baton Rouge to St. Franeisville. She had earlier in the night been visiting with her sister. Ms. Doe testified that while she was stopped at a red light at the intersection of Highway 61 and Louisiana 19, the defendant opened the unlocked passenger door and entered the truck. He pointed an object at her, which she thought to be a gun, and told her to drive on. He led her to a rural road and ordered her to stop. Ms. Doe testified that she jumped out of the truck in an attempt to escape, but the defendant grabbed her and threw her to the ground. In response to her screams, the defendant told her to shut up or he would shoot her. The defendant then had sexual intercourse with the victim. When he got up, Ms. Doe made her escape by jumping up, running to the truck and driving away. As she drove away, she testified that she heard what sounded like a gun shot. Ms. Doe drove back to the motel where her sister was staying in Baton Rouge and reported the incident to the police. She appeared physically unharmed with the exception of a small scratch on her neck. She was examined at that time by a physician, and semen was found in the vaginal area. She gave the police a description of the perpetrator, and the defendant was later arrested and identified by the victim.

Defendant testified at trial and had an entirely different version of the events in question. He stated that he was walking home on the night in question when the victim pulled over in her pick-up truck and offered him a ride home. Defendant got in the truck and she drove on. After a brief period of time, defendant stated that Ms. Doe began asking him questions concerning his interest in white women. He stated that the ride continued to his home where Ms. Doe dropped him off. He denied having sex with the victim, forced or not, and denied ever owning or possessing a gun. Defendant’s sister testified that she saw a pick-up truck drop her, brother off, although she could not give the color or make.

Although defendant was charged with aggravated rape, the jury returned a verdict of forcible rape.

The presentence investigation report shows that defendant was twenty-one years old at the time of the offense. He was a first offender. He had been arrested as a juvenile for misdemeanor theft and as an adult for simple battery and disturbing the peace. Neither of these arrests led to convictions. Defendant had completed the tenth grade and has been working steadily for the same employer for the past three to four years. He has three children by one woman, with whom he was living, and was contributing to the support of those children.

Added to these considerations of the nature of the offense and the offender, we must also consider the sentences which have been imposed in other forcible rape cases. In reviewing a very similar case, this Court in State v. Telsee, supra, made the following observations:

Generally, a survey of sentences for forcible rape which have been reviewed or noted by this court reflect a range of sentences from ten years at hard labor to twenty-five years at hard labor, with parole excluded for periods of two to eight years. In two cases in which the sentence exceeded this range, a sentence of forty years at hard labor was imposed. In one of these, the sentence was vacated and the case remanded for resentencing because the record did not reflect that the defendant used a weapon as the trial judge assumed and because the judge had failed to consider mitigating circumstances. In most of the cases considered, including those involving sentences in the ten to twenty-five range, the circumstances of the crime were more aggravated than Telsee’s offense.

The Court went on to discuss some of the more pertinent cases in which a sentence for forcible rape was reviewed. The Court in Tehee noted the following eases:

(1) State v. Bagley, 378 So.2d 1356 (La.1979). The defendant was convicted of forcible rape and sentenced to ten years at hard labor. The defendant entered the victim’s home, choked her, dragged her around and raped her.

(2) State v. Roussel, 381 So.2d 796 (La.1980). The defendant was indicted for aggravated rape, convicted of forcible rape and sentenced to twelve years at hard labor. The defendant had kidnapped the victim, forced her to drive around for over an hour, threatened to kill her several times if she did not cooperate, and raped her. Defendant had numerous arrests for minor offenses.

(3) State v. Decuir, 364 So.2d 946 (La.1978). The defendant was convicted of forcible rape and sentenced to twelve years at hard labor. The rape victim was seventeen years old.

(4) State v. Reed, 409 So.3d 266 (La.1982). Defendant pled guilty to forcible rape and was sentenced to fifteen years at hard labor, two without benefit of parole, probation or suspension of sentence. Defendant raped the victim at knife point. He had several misdemeanor convictions.

(5) State v. Dawson, 392 So.2d 445 (La.1981). Defendant was indicted for aggravated rape, convicted of forcible rape and sentenced to twenty years at hard labor, two without benefit of parole, probation or suspension of sentence. The victim was only thirteen years old and was raped at knife point. Defendant had a previous record of sex crimes.

(6) State v. McDaniel, 410 So.2d 754 (La.1982). Defendant was convicted of forcible rape and sentenced to twenty-one years at hard labor, two without benefit of parole, probation or suspension of sentence. Defendant kidnapped and raped his victim at knife point.

(7) State v. Lewis, 412 So.2d 1353 (La.1982). Defendant was convicted of forcible rape and sentenced to twenty-four years at hard labor, eight without benefit of parole, probation or suspension of sentence. Defendant entered the victim’s house, hit her over the head, ripped her clothes off, beat her with the butt of a rifle, marched her through the house naked at gunpoint, tied her up and raped her.

(8) State v. Austin, 399 So.2d 158 (La.1981). Defendant was indicted for aggravated rape, convicted of forcible rape and sentenced to twenty-five years at hard labor, two without benefit of parole, probation or suspension of sentence. Defendant burglarized the premise and raped the occupant.

(9) State v. Acliese, 403 So.2d 665 (La.1981). Defendant was indicted for aggravated rape, convicted of forcible rape and sentenced to twenty-five years at hard labor, two without benefit of parole, probation or suspension of sentence. The victim was eleven years old. Defendant had a prior history of similar offenses.

(10) State v. Drayden, 372 So.2d 565 (La.1979). Defendant was indicted for aggravated rape, convicted of forcible rape and sentenced to forty years at hard labor. Defendant entered the victim’s home, obtained a butcher knife and threatened the victim into submitting to both oral sex and sexual intercourse. He had made a similar attempt before.

(11) State v. Lewis, 416 So.2d 921 (La.1982). Defendant was convicted of forcible rape, aggravated burglary, and aggravated crime against nature and sentenced to forty years at hard labor for the rape charge. The defendant forced his way into the victim’s home, it was believed he was armed, he stayed over two hours, raped the victim three times, performed oral sex on her four times, and compelled her to perform oral sex on him five times. He had made a similar attempt before. This sentence was reversed because it was determined that the trial judge was mistaken about the defendant being armed.

We must add to this list the Telsee case itself as well as cases decided thereafter. Telsee was charged with aggravated rape. He pled guilty in the First Judicial District Court in Caddo Parish, to the lesser offense of forcible rape and was sentenced to forty years at hard labor, at least half of which was to be without benefit of parole, probation or suspension of sentence. This sentence was vacated and the case was remanded to the trial court for resentenc-ing. State v. Telsee, 388 So.2d 747 (La.1980). The trial judge again imposed a forty year sentence. This sentence was again vacated because of the failure to comply with the sentencing guidelines of C.Cr.P. art. 894.1. State v. Telsee, 404 So.2d 921 (La.1981). On a second remand of the case for resentencing, the court again sentenced Telsee to serve forty years at hard labor, but made no provisions concerning what part of the sentence was to be served without benefit of parole, probation or suspension of sentence. The facts indicated that the defendant had tricked the victim into pulling off the roadway by flashing a light in her rearview mirror. Defendant identified himself as a police officer and as the victim opened her car door, defendant jumped into the car. Defendant admitted that the victim resisted and that he had to overcome her by force. She received numerous bruises and scratches on her neck and face and a cut on her leg. The victim claimed that the defendant said he had a gun and had threatened to shoot her. After the rape, the defendant also robbed the victim of all her money and a gold watch. Telsee was a first offender. After finding that Telsee was not among the worst individuals who had been convicted of forcible rape and that his crime itself was not as aggravated as others in which defendants have been sentenced less severely, this Court held that Telsee’s forty year sentence was unconstitutionally excessive and amended it to twenty-five years at hard labor, two of which were ordered to be served without benefit of parole, probation, or suspension of sentence. State v. Telsee, 425 So.2d 1251 (La.1983).

In State v. Graffagnino, 436 So.2d 559 (La.1983) defendant was sentenced to eight years at hard labor, with two years to be served without benefit, in the Twenty-Seventh Judicial District Court for St. Landry Parish, for forcible rape. Defendant’s victim was sixteen years old. She was released physically unharmed, although the record evidenced psychological problems. Defendant was a first felony offender but had an extensive misdemeanor and arrest record. Defendant had been arrested and convicted of shoplifting and placed on probation. That probation was revoked when he was again arrested for shoplifting. He has been charged with two counts of theft, one count of burglary, two counts of possession of marijuana and one count of possession of marijuana with intent to distribute, although the record reflected no disposition of those charges.

Also relevant here is the case of State v. Everett, 432 So.2d 250 (La.1983) in which we reversed a maximum fifty year sentence imposed for attempted aggravated rape where the Court noted that the maximum penalty “is ordinarily reserved only for the worst kind of offense and the worst kind of offender. With no juvenile or adult record of arrests or convictions, defendant hardly qualified as the worst kind of offender.”

In comparing the instant case with the other cases discussed above, we find that it most closely compares with Telsee. The two cases are almost indistinguishable. Like Telsee, defendant here is a first offender. The victim testified that defendant threatened to shoot her, but there was no other evidence of a gun, just as was the case in Telsee. Defendant’s victim was relatively unharmed. In fact, she was not as physically mistreated as was the victim in Telsee. Defendant herein is three years older than Telsee was at the time he committed his offense, but he has a work history showing steady and continuous employment with the same employer for over three years and has a family which he supported, neither of which were mitigating factors in Telsee’s case.

As we observed in Telsee, generally the sentences for forcible rape which have been reviewed by this Court reflect a range of sentences from ten to twenty-five years at hard labor, with parole excluded for periods of two to eight years. Sentences must be imposed to correlate with the nature of the offense and the offender and should be imposed with consideration of the sentences imposed for similar crimes by other courts. Such considerations insure proportionality such that the most severe sentences are imposed for the most egregious crimes or criminals.

The United States Supreme Court, in Solem v. Helm, supra, recently adopted a similar method of reviewing sentences, under the Eighth Amendment of the United States Constitution, to that utilized by this Court in Telsee. In answering affirmatively the question of “whether the Eighth Amendment proscribes a life sentence without possibility of parole for a seventh nonviolent felony,” the Court held “that a criminal sentence must be proportionate to the crime for which the defendant was convicted.” The Court went on to explain that “a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”

In applying the above analysis to the facts before it, the Court determined that Helm’s life sentence, without the possibility of parole, was unconstitutional under the Eighth Amendment of the United States Constitution because it was “significantly disproportionate to his crime.” In so holding, the Court distinguished Helm’s case from the apparently similar case of Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

Rummel was convicted of his third nonviolent felony and sentenced to life imprisonment. However, Rummel was not denied parole eligibility. The Court noted that Rummel would be eligible for parole in a minimum of 10 years, under Texas law, and a maximum of 12 years. The Court ruled in Rummel, that his sentence did not violate the Constitution.

The Court in Solem and Helm noted, in contrast, that Helm would have to “spend the rest of his life in the state penitentiary.” The Court found that the denial to Helm of parole eligibility created a significant difference between the Rummel life sentence and the Helm life sentence, stating that the latter was “far more severe than the life sentence we considered in Rummel v. Estelle.” In fact, the Court found this feature of Helm’s sentence so seriously different from that imposed in Rummel that it warranted a contrary result in Helm’s case. Accordingly, the Court held unconstitutional the life sentence therein imposed without parole eligibility for one convicted of his seventh nonviolent felony, notwithstanding that they had affirmed Rummel’s life sentence imposed for his third conviction for a nonviolent felony. Thus, it is clear that a sentence imposed without parole eligibility is considered a much more severe sentence than one imposed with parole eligibility.

After reviewing defendant’s sentence in light of these principles of appellate review of sentences, we conclude that the imposition of the maximum sentence of forty years imprisonment at hard labor, all to be served without benefit of parole, probation or suspension of sentence, is grossly disproportionate to similar cases and, like Telsee, constitutes excessive punishment prohibited by La.Const. art. 1, § 20.

The crime for which defendant has been convicted, forcible rape, constitutes a violent and despicable act for which he deserves to be seriously punished. However, the maximum sentence is disproportionately severe in view of the circumstances of this case and the sentences imposed in other comparable and more severe cases. Defendant’s crime was not nearly the worst forcible rape which has been perpetrated, nor anywhere like the worst ones perpetrated. Defendant did not physically and brutally abuse the victim as is sometimes the case. She was, fortunately, released relatively unharmed and there is no evidence in the record of her suffering psychological difficulties. Nor is defendant among the worst individuals who have been convicted of this offense. Although he does deserve to be seriously punished for what he did, he compares favorably to others convicted of the same crime (like habitual sex offenders) who received less severe sentences. Lathers is relatively young, twenty-one years old at the time of the offense. He had no prior convictions or juvenile adjudications. He completed the tenth grade, had a steady work history for the past three to four years and was helping to support his three children. There is no evidence in this record to indicate that Lathers is hopelessly incorrigible. And yet, in comparison with the sentences that other offenders have received for the same offense, Lathers’ is the most severe.

One of the goals of imprisonment is rehabilitation of the offender. That purpose is promoted by the Department of Corrections’ ability to offer a prisoner parole eligibility in exchange for his good behavior. It encourages good behavior and furthers the rehabilitative process. However, in this case, the Department of Corrections has been denied the ability to encourage Lathers’ rehabilitation by offering him parole eligibility for improved behavior. Rather, the effect is a debilitating one. Defendant has no reason for improvement because parole eligibility is denied him. Defendant must serve every day of his forty year sentence. That is a very different sentence from and much more severe than one for forty years imprisonment with parole eligibility, which gives a first offender the opportunity for release after thirteen years and four months. Solem v. Helm, supra. And it is far too severe for this defendant who is twenty-one years old and a first offender, especially considering that it is the most severe sentence imposed of all those reviewed and yet it is not nearly the worst crime.

Yet, we are well aware of the seriousness of the accused’s act. He committed an act of violence on another human being. And he did so, as the victim testified, with the threat of killing her. Thus, imposition of a sentence in the upper range of those customarily imposed is justifiable. However, under no circumstances should this defendant be denied parole eligibility for more than the maximum period imposed on any other of these defendants, eight years. A sentence, much in excess of that imposed on any other more serious offender, would be constitutionally excessive punishment under La. Const. art. I, § 20 and U.S. Const. amend. VIII.

Decree

For the foregoing reasons, the sentence imposed by the trial court is vacated and the case is remanded to the trial court for resentencing in accordance with the views expressed herein.

SENTENCE VACATED; CASE REMANDED TO DISTRICT COURT FOR RESENTENCING.

MARCUS, J., dissents and assigns reasons.

LEMMON, J., dissents and will assign reasons.

APPENDIX

The Court in Telsee discussed pertinent rape cases that have been reviewed by this Court as follows:

In State v. Bagley, 378 So.2d 1356 (La.1979), the defendant was convicted of forcible rape and sentenced by the First Judicial District Court of Caddo Parish to ten (10) years at hard labor. The defendant gained entrance into the victim’s home by a ruse, choked her, dragged her to a bedroom and raped her. The defendant admitted having sexual intercourse with the victim but claimed that the victim voluntarily engaged in the act after he had gone to her house to buy some marijuana. It was apparently undisputed that he had previously been acquainted with the victim.

In State v. Roussel, 381 So.2d 796 (La.1980), the defendant was indicted for aggravated rape, convicted in the Criminal District Court of Orleans Parish of forcible rape, and sentenced to twelve (12) years at hard labor. The defendant kidnapped the twenty-three year old victim after she picked him up as a hitchhiker, told the victim that he had a gun, threatened to shoot her, drove around with her in the car for as long as an hour and a half, raped her, and left her with a warning that if she said anything, he would “close her mouth for good.” The defendant stated at one point that he would “blow her brains out” if she refused to cooperate. The defendant also committed a robbery of the victim by taking her purse and money. This was Roussel’s first felony offense, although he had numerous arrests for minor offenses and a bad school record. The defendant had shown no remorse.

In State v. Decuir, 376 So.2d 946 (La.1978), the Fifteenth Judicial District Court for Lafayette Parish convicted the defendant of forcible rape and sentenced him to serve twelve (12) years at hard labor. The rape victim was a seventeen year old unmarried girl with two children. No other facts concerning the commission of the crime or the persons involved were related by the opinion.

In State v. Reed, 409 So.2d 266 (La.1982), the Nineteenth Judicial District Court of East Baton Rouge Parish accepted defendant’s plea of guilty to forcible rape and sentenced him to fifteen (15) years imprisonment at hard labor with two of those years to be without benefit of probation, parole or suspension of sentence. The defendant entered a neighbor’s home causing her to arm herself with a knife. The defendant took the knife from her and told her that he had come to rape her. When she ceased to resist, he put the knife on the floor and raped the victim. At the time of the rape, the defendant was somewhat intoxicated. This was the defendant’s first felony offense, but he had several prior misdemeanor convictions, including simple battery, simple arson, and possession of marijuana.

In State v. Dawson, 392 So.2d 445 (La.1981), the First Judicial District Court, Parish of Caddo, sentenced the defendant to twenty (20) years at hard labor, two (2) without benefit of probation, parole or suspension of sentence, after he had been found guilty of forcible rape by a jury, following his indictment for aggravated rape. The defendant kidnapped the thirteen year old victim by holding a knife to her throat, took her to a secluded place in his truck, and raped her. According to the opinion of this court, the defendant had a previous record of sex crimes which indicated a likelihood of his future commission of such offenses.

In State v. McDaniel, 410 So.2d 754 (La.1982), the Twenty-Fifth Judicial District Court of Grant Parish sentenced the defendant to twenty-one (21) years at hard labor, the first two (2) years without benefit of probation, parole or suspension of sentence, after he was convicted by a jury of forcible rape following the original charge of aggravated kidnapping and attempted armed robbery. The defendant hid in the back of a woman’s unoccupied van in a shopping center, forced her at knife point to drive to a remote spot, forced her to have sexual intercourse, and attempted to commit armed robbery.

In State v. Lewis, 412 So.2d 1353 (La.1982), the Ninth Judicial District Court, Parish of Rapides, sentenced the defendant to twenty-four (24) years at hard labor, the first eight (8) years without benefit of parole, probation or suspension of sentence, after the defendant’s conviction of forcible rape. The defendant made an unauthorized entry into the victim’s house, hit her over the head, ripped off her clothes, beat her with the butt of a rifle, and raped her. The sentencing judge mentioned the terror of the victim produced by her masked assailant when he beat her about the head and body with the gun stock, requiring stitches, ripping off her clothes, marching her through the house at gunpoint, tying her up and raping her. In his opinion, the judge noted that the vicious nature and seriousness of the crime demanded a sentence in the “upper range.” Although the defendant was eighteen years old, and this was his first felony conviction, the trial judge considered that these factors did not outweigh the trauma to the victim.

In State v. Austin, 399 So.2d 158 (La.1981), the Ninth Judicial District Court, Parish of Rapides, sentenced the defendant to twenty-five (25) years at hard labor, two (2) years without benefit of probation or parole, after his conviction of forcible rape based on an original indictment for aggravated rape. The defendant had burglarized a premises by climbing through the window of a trailer and attacking the victim. The defendant did not request a review of his sentence and the opinion contains no further facts related to punishment.

In State v. Acliese, 403 So.2d 655 (La.1981), the Twenty-Seventh Judicial District Court, Parish of St. Landry, sentenced the defendant to twenty-five (25) years at hard labor with two (2) years of the sentence to be without benefit of probation, parole or suspension of sentence after his conviction by a jury of forcible rape following his indictment for aggravated rape. The victim in this case was the eleven year old daughter of the woman with whom the defendant was living. The victim testified that the defendant had either raped her or attempted to rape her on six prior occasions. At the time of this offense, the defendant was on parole for conviction of carnal knowledge of a juvenile for an incident concerning his stepdaughter during a former marriage. On that occasion, the defendant had been charged with forcible rape and had pleaded guilty to a reduced charge of carnal knowledge of a juvenile. In imposing sentence, the trial judge considered that the defendant’s criminal record of similar crimes, the repetitive nature of this crime, and the fact that the crime was committed on a child under the age of consent, warranted the sentence.

In State v. Drayden, 372 So.2d 565 (La.1979), the defendant was convicted of forcible rape and sentenced to forty (40) years imprisonment at hard labor by the First Judicial District Court, Parish of Caddo, after being charged by a grand jury indictment with aggravated rape. The defendant gained entrance to the victim’s house by a ruse, grabbed her around the neck and pulled out a butcher knife. He forced her into the bedroom and engaged in oral sex and sexual intercourse. Although he did not use the butcher knife on his victim, he did threaten her with force if she resisted. In imposing sentence, the court relied on a presentence investigation which indicated that the defendant had previously attempted to force his way into a home in the same parish by knocking on a woman’s door and asking for directions to another person’s home. He allegedly advised his victim that he was looking for an automobile that was for sale, a ploy similar to the one used in the instant case. Based on this information, the trial court concluded that there was an undue risk that during the period of suspended sentence or probation, the defendant would commit another offense.

In State v. Lewis, 416 So.2d 921 (La.1982), the Nineteenth Judicial District Court, East Baton Rouge Parish, after the defendant was convicted by a jury of forcible rape, aggravated burglary, and aggravated crime against nature, sentenced the defendant to forty (40) years at hard labor without benefit of probation, parole or suspension of sentence for forcible rape, thirty (30) years at hard labor for aggravated burglary, to run concurrently with the forty year sentence, and ten (10) years at hard labor for aggravated crime against nature, to run consecutively with the above sentences. The twenty year old female victim testified that a black male appeared at her apartment late at night and asked to use the telephone and for a drink of water. As she tried to slam the door upon refusing his request, he forced his way inside. After a struggle in the living room, the defendant forced her to the bedroom and for approximately two and [one] half hours forced her to submit to sexual intercourse three times, performed oral sex on her four times, and compelled her to perform oral sex on him five times. A witness testified that the defendant had come to her apartment in the same neighborhood approximately one hour earlier on the night of the offenses. He apparently tried to gain entry to the apartment with the same story but was unsuccessful. In sentencing the defendant, the court noted that the crimes committed were very violent, that the victim was severely affected emotionally and physically, and that the defendant was armed when he committed these offenses. The defendant had no prior felony or misdemeanor convictions, had been employed as a welder at the time the crime was committed, and his personal records indicated he was a good worker. Most importantly, it appeared that the trial court believed that the defendant had been armed when he committed the crimes, but there was no testimony by any witness that indicated that the defendant was armed with a weapon during the commission of the offenses. Because of our concern that the trial judge had sentenced the defendant with a mistaken impression that he was armed with a weapon during the offense and had failed to give any weight to the mitigating circumstances, this court vacated the sentence and remanded the case to the trial court for resentencing after further consideration of these matters.

MARCUS, Justice

(dissenting).

I am unable to say that the trial judge abused his discretion in imposing the sentence that he did in this case. Hence, I do not find defendant’s sentence excessive. Accordingly, I respectfully dissent.

      . This phrase is used throughout the opinion to refer to physical injury by being beaten, etc. by the attacker. We are well aware that any woman who is raped has suffered "physical harm." Thus we do not mean to imply that one can be raped and suffer no physical harm, but rather, we are only focusing on the degree of physical brutality over and above the rape.

      . The cases, as more fully described in Telsee, are included in an appendix to this opinion.

      . Under R.S. 15:571.3(C)(l)(f) defendant is not entitled to "good time” credits. And with parole eligibility denied defendant for the full term of his sentence, the result is that he must serve the entire forty years in prison.


source: Caselaw Access Project

license: Public Domain

text:
    Bailey E. CHANEY, et al. v. The STATE MINERAL BOARD of the State of Louisiana.
    No. 83-C-0675.
    Supreme Court of Louisiana.
    Dec. 19, 1983.

      William J. Guste, Jr., Atty. Gen., Gary L. Keyser, David C. Kimmel, H. Glen Kent, Jr., Asst. Attys. Gen., for applicants.
    Leslie D. Ligón, Jr., Ligón & Ware, Clinton, W. Hugh Sibley, Greensburg, for respondents.
   CALOGERO, Justice.

We granted defendant’s writ application, and for argument, we consolidated the case with Todd v. State of Louisiana et al., (La.1983) (No. 82-C-2915, decision rendered November 28, 1983 rehearing granted January 5, 1984), principally to decide whether a possessory action may be brought against the State of Louisiana. For the reasons discussed more fully in Todd, a possessory action may be maintained against the state. Corporeal immov-ables capable of being privately owned may be the object of a possessory action. Because the state may own private things in its capacity as a private person, a possesso-ry action may be maintained against it.

As we determined in Todd, a pertinent consideration when a possessory action is brought against the state is the nature of the land in dispute. In this case, the land in dispute is a portion of the Amite riverbed which runs between St. Helena and East Feliciana Parishes. Since the waters which traverse the Amite River bed, pertinent to this litigation, are non-navigable, the bed is a private thing, and, therefore, a possessory action may be maintained against the state in regard to such property. In this case, the trial judge documented the non-navigability of the water-body through testimony and photographs. The land in dispute (the bed and bottom of the Amite River) is a private thing and so may be the object of possessory action.

In the possessory action, for plaintiffs to prevail they must show that they were in peaceable possession for one year before being disturbed. La.C.C.P. art. 3658(1) and (2). In this case, the lower courts found that the plaintiffs were in uninterrupted peaceable possession for one year preceding the state’s advertisement for bid for oil and gas leases of the bed in question. In a possessory action, the plaintiffs are required to sue within one year of the date of their disturbance. La.C.C.P. art. 3658(3) and (4). That was done in this case. The State Mineral Board advertisement took place on November 12, 1980. On December 17, 1980, a possessory action was filed in St. Helena Parish on behalf of a group of riparian landowners (Harb, et al). On December 30, 1980, a possessory action was filed in East Feliciana Parish on behalf of another group of riparian landowners (Chaney, et al), which sought, as well, to enjoin the lease sale. The two suits were consolidated and tried in the Twentieth Judicial District Court of East Feliciana Parish.

While acknowledging that running water must be kept free for public use, the trial judge found evidence of the plaintiffs’ possession of the riverbed itself through testimony of area landowners relative to the posting of signs, dredging for sand and gravel, wading and other recreational uses. He awarded judgment in plaintiffs’ favor in the possessory actions and ordered the state to file a petitory action within sixty days after judgment becomes executory or be precluded thereafter from asserting its ownership.

The state appealed contending that the plaintiffs had not sufficiently proven their possession. The Court of Appeal affirmed. 428 So.2d 880 (La.App. 1st Cir.1983). In its application to this Court, in addition to contesting again the sufficiency of plaintiffs’ proof of possession offered at trial, the State Mineral Board argued that a private individual may not bring a possessory action against the state. As stated earlier, we granted the state’s writ application to consider that question in consolidation with Todd, supra and to consider whether sufficient proof of possession of the bed and bottom of the Amite River had been shown below.

In arguing that a private litigant does not have the right to bring a possesso-ry action against the state, the State Mineral Board contends that the constitutional prohibition against the state’s losing land by prescription (La. Const, art. IX, § 4(B)) prevents a possessor from having the requisite “intent to possess” land claimed by the state and always bars a possessory action against the state, irrespective of the private or public character of the property. For the reasons discussed fully in Todd, supra, the constitutional prohibition against losing state land by prescription does not bar a possessory action against the state.

Having determined that a possessory action may be maintained against the State Mineral Board, we now turn to the state’s second assignment of error which alleges that the plaintiffs did not sufficiently prove their possession to the portions of the riverbed abutting their alleged properties and to the thread or centerline of the Amite River. Upon review, we agree with the state that possession was not sufficiently proven by the plaintiffs.

The burden of proof in any posses-sory action is upon the plaintiff to establish the essential elements thereof. La.C.C.P. arts. 3656, 3658; Louisiana Materials Company v. Cronvich, 258 La. 1039, 249 So.2d 123 (1971), cert. denied, 405 U.S. 916, 92 S.Ct. 934, 30 L.Ed.2d 786 (1972). Possession is an essential element of a posses-sory action. La.C.C.P. art. 3658; Todd, supra.

The Civil Code enumerates two kinds of possession: corporeal possession and constructive possession. Corporeal possession is defined in La.C.C. art. 3425 as “the exercise of physical acts of use, detention, or enjoyment over a thing.” Constructive possession is set forth in La.C.C. art. 3426 as follows: “One who possesses a part of an immovable by virtue of a title is deemed to have constructive possession within the limits of his title. In the absence of title, one has possession only of the area he actually possesses.” Relative to the proof required in the latter instance, comment (d) to La.C.C. art. 3426 states “[i]n the absence of title, there is no constructive possession: one has possession only of the area he actually possesses. Actual possession must be either inch by inch possession (pedis possessio) or possession within enclosures.”

We have recently had occasion to examine the kind of proof necessary to support a successful possessory action. In City of New Orleans v. New Orleans Canal, Inc., et al., 412 So.2d 975 at 982 (La.1982) (On Rehearing), we quoted with approval the appellate court opinion as follows:

When a possessor has a title, his exercise of possession over a part of the property constitutes the exercise of constructive possession of the whole; however, when a possessor does not have a title, his claim of possession is limited in extent to that property shown by enclosures (artificial or natural boundaries) and his possession must be proved ‘inch by inch’ so that the possessor must establish actual, physical and corporeal possession over the entire amount of land claimed in the possessory action. Stated otherwise, the possessor without title is entitled to be maintained in possession only to the extent of the boundaries within which he proved actual, physical and corporeal possession. (Citations omitted.) (Emphasis provided.)

Bearing these principles in mind, we now examine the state’s contention that possession of the bed and bottom of the Amite River was not shown either by title (or by title to properties on the adjoining banks with a La.C.C. art. 506 extension) or by enclosures or inch by inch possession.

Titles of the riparian owners were not introduced into evidence. The riparian property in question was identified in the petition by reference to the notarial records of St. Helena and East Feliciana Parishes respectively. At trial, the plaintiffs referred to themselves as riparian landowners along the Amite River. No evidence other than these allegations of titles was introduced; the record is devoid of the titles or deeds of riparian owners. Nor do the plaintiffs suggest that because they hold title to the riparian land and because they possess portions of the bank and parts of the bed that they then possess the whole to the middle of the riverbed. Instead the plaintiffs rely entirely upon corporeal inch by inch possession of the riverbed in question.

We must therefore examine the evidence to see if the plaintiffs sufficiently proved corporeal possession of the disputed areas of riverbed. As we earlier noted, “when a possessor does not have a title, his claim of possession is limited in extent to that property shown by enclosures (artificial or natural boundaries) and his possession must be proved ‘inch by inch’,” City of New Orleans, supra. On the meaning of the term “enclosures” relative to a possessory action, we explained further in City of New Orleans, at 412 So.2d 981:

“Enclosed” does not necessarily mean “fenced in”, but does require “that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, [whether] by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof.” Hill v. Richey, 221 La. 402, 59 So.2d 434 [at 441] (1952).

“[C]orporeal possession [then] ... is governed by the nature of the land and the use to which the land is put.” Cheramie v. Cheramie, 391 So.2d 1126 at 1130 (La.1980). See also Liner v. Louisiana Land and Exploration Co., 319 So.2d 766 (La.1975) and cases cited therein at 319 So.2d 772, 773.

In this case, the nature of the land and the use to which it is put is peculiar on its facts and one of first instance for this Court.

The object of this possessory action is partially submerged land, the bed and bottom of a non-navigable river. Although non-navigable, the Amite River still carries water over its bed which presents a unique juxtaposition of private and public things. On the one hand, the bed and bottom of a non-navigable river or stream is a private thing belonging either to the riparian owners or the state (depending upon whether it was originally non-navigable or navigable — see Wemple v. Eastham, 150 La. 247, 90 So. 637 (1922)). On the other hand, the water which traverses that private bed is a public thing. (“Public things that belong to the state are such as running waters, ...” La.C.C. art. 450.) As such, the riparian owner may use the running water for his purposes, but he may not interfere with, nor prevent, its use by the general public. La.C.C. arts. 657 and 658; Yiannoupoulous, 2 La.Civ.Law Treatise § 36, 99 et seq. (2d ed. 1980). Therefore the possessor of the bed, or owner for that matter, may not fence or enclose the “land” so as to impede the use of the flowing water. Moreover, there was testimony at trial from a lifelong resident of East Feliciana Parish that the river would wash out any signs or monuments placed within it.

So we have here a possessory situation where the area is not subject to being enclosed in the usual sense. In a case like this we examine the evidence for recognizable boundaries within which plaintiffs have possessed, with due regard to the limitations imposed because the bed is traversed by the “public” free flowing water.

At trial the following was adduced:

Relative to possession by the East Felici-ana Parish plaintiffs, five witnesses testified.

Mr. Fleniken testified that he looked after the property of plaintiff Bailey Chaney and had permission to use it for recreation, barbecues, and fishing. The Bass family likewise had permission to use the property and had posted signs on the riverbank, “Keep out. Private Property.”

Bailey Chaney himself testified that he allegedly possessed to the middle of the river through recreational use of the river bottom, and several sand, gravel and mineral leases. On occasion he allegedly shared royalties with two St. Helena landowners on the other side of the river. Furthermore Chaney stated that the land was posted with signs on the bank and advertised in a local newspaper as posted private property.

Allen Thomasson of Plaquemine Sand and Gravel testified about gravel operations he allegedly conducted on several tracts along the river. As a gravel operator in the disputed area for eighteen to twenty years, he said he had never paid any royalties to the State of Louisiana nor heard of anyone’s paying the state royalties on sand and gravel produced in the area. He testified also that “[w]e had been pretty careful to not get past the center of the river.” Once Thomasson had a dispute with Harvell, an alleged landowner on the east bank of the river, over dredging beyond the centerline, and as a result Thom-asson moved his dredge closer to the west bank of the river.

Mr. Stanley Hornsby, another alleged landowner in East Feliciana Parish, testified that he too possessed up to the center-line of the river through various sand and gravel leases. Mr. Charles Chaney, son of Otis Chaney, attested that the purported boundary of his family’s property was the river’s centerline. Furthermore, the Chaney’s gave permission to the New Jesus Gospel Church and Bluff Creek Baptist Church to use the river in baptismal ceremonies. By joint stipulation, it was agreed that Otis Chaney would testify the same as did Charles Chaney.

Relative to possession by the St. Helena Parish plaintiffs, four witnesses testified.

James Odom, an alleged landowner on the St. Helena Parish side of the river, testified that he had possessed to the cen-terline of the river by virtue of numerous timber sales and various grazing, recreational, sand, gravel and mineral leases. During the inclusive time frame of three alleged sand and gravel leases, Odom said he had seen dredging barges on the river at different points.

Mr. Lea Harvell, an alleged landowner in St. Helena Parish who had his property posted, also attested to granting sand and gravel leases up to the centerline of the river, and confirmed he had made Allen Thomasson move his dredging operation back across where he believed the center-line of the river was.

Mrs. Ethel Harvell Jones, sister of Lea Harvell identified several old photos showing people wading, sitting and lying on the riverbed. By joint stipulation, it was agreed that two other witnesses to be called for plaintiff would testify the same as Mrs. Jones. Jimmy Jones, son of Hoiice Jones, testified that acts of possession on their alleged property included an old lease for sand and gravel to Jahncke. The property was posted and sand and gravel had allegedly been pumped to the center line. By joint stipulation it was agreed that Maurine Jones would testify the same.

Furthermore all parties stipulated that the balance of the thirty-three plaintiffs would testify the same as Stanley Hornsby, James Huntington Odom, and Lea Harvell had testified.

The witness for the State Mineral Board was W.B. Watson, an environmental coordinator with the Department of Wildlife & Fisheries. As a biologist with the water pollution control division of the Department of Wildlife and Fisheries prior to its being located in the Department of Natural Resources, Watson had been responsible for monitoring the gravel operators along the Amite River from the Mississippi state line to Port Vincent, Louisiana, to assure that conservation measures were being taken to prevent degradation of the water quality of the river. At the time Watson was working, there were thirty-one gravel operators on the full length of the Amite River and he was responsible for thirteen parishes. On different occasions he would meet with gravel pumping operators to discuss how to alleviate the discharge of muddy water into the river. There were some reports of gravel pumping operations in the river in the area in dispute and about four or five years ago, in or close to the area of dispute, he did find one operator in violation of the Scenic Rivers Act.

This evidence at trial shows that the property is by nature a land surface covered with the waters of a non-navigable river. As such it is suited for mining, for fishing, for occasional baptisms by local churches, and for recreational activities including swimming, wading, digging for clams and mussels, skimming rocks, and fishing.

The plaintiffs through testimony and photo exhibits have proven their recreational use of this particular section of the Am-ite River, and testified about various leases over the years. Likewise the plaintiffs stated that they knew and observed boundaries among themselves, posted signs along the river banks “Keep Out. Private Property,” or evicted those using the land areas without permission. Furthermore, testimony at trial established that the alleged riparian owners commonly recognized that the possession of each extended to the centerline of the river. For example, when Thomasson was asked about the boundaries of possession, he replied: “It has always been the centerline of the river, sir. Wherever the stream itself is flowing.” Later on he elaborated further on how the centerline was determined. “If one took a rule and measured the area where the water is flowing and divided that by half, sir, and got to that point on that rule, I guess that would be the centerline. That is how I would define it_ [formally, the river would be from as little as 10 [feet wide], and in the shallow places up to as much as 50 feet [wide], and we assume that the center of wherever this stream is flowing is the centerline of the river.”

While these general assumptions concerning the centerline boundary may have been enough to keep peace among neighbors, it is not sufficient to maintain the plaintiffs as legal possessors. The corporeal possession necessary to sustain a successful possessory action “must be sufficient to give definite notice to the public and all the world of the character and extent of possession, to identify fully the property possessed and to fix with certainty the boundaries or limits thereof.” City of New Orleans, supra.

The activities attested to by the plaintiffs (fishing, swimming, wading, tubing, stone skimming, digging for clams and even baptizing church members) indicate that they used parts of the riverbed at various times; however, the plaintiffs have failed to prove definitely, fully, and certainly the geographic extent of and the continuous and obvious nature of their use of the riverbed. The activities to which the plaintiffs testified are natural things done in any river or stream in the state and are not such as to give definite notice to the public and all the world that the plaintiffs were possessing the riverbed as owners rather than merely using the running waters of the state as members of the general public. Some of the plaintiffs allegedly granted sand and gravel leases for portions of the bed and bottom of the Amite River at varying times but the areas covered by the leases remain indeterminate. The leases were not introduced into evidence, nor was there testimony or documentation showing the exact positions at which the mining operations were conducted.

Additionally the thread or centerline of the Amite River is not such a natural or artificial mark which gives notice to the public and the world at large of the character and extent of individual possession. The center of a river is an invisible line subject to natural changes. The disputed portion of the Amite River in this case is a meandering stream dotted irregularly with sandbars and islands, around which water moves with varying frequency and speed depending on the changing river stages. Signs placed on the river bank may, of course, attest to alleged ownership or private possession of the riverbank. Posting the riverbank may indicate to the passing tuber or canoeist that the riverbank should not be used for picnics or campfires. But such signs are not indicative to third parties that the river bed itself is private property divided co-equally at an invisible cen-terline between riparian owners or possessors from either side.

Furthermore, even if the thread of the river were adopted as a natural boundary, no side boundaries of the riparian properties, no cross-river indicators of enclosure or the extent of possession, were proven in this case. There was no testimony of visible marks, either artificial or natural, extending from the bank to the thread or centerline of the river. No evidence was introduced regarding any survey which delineated the boundaries or the extent of possession between the alleged neighboring riparian possessors or owners along the disputed tract. No crossboundaries were established conclusively either on the riverbank or to the thread or centerline of the river itself to give notice to the public or the world at large of the extent of the respective separate possessions of each of the adjoining riparian tract owners.

Accordingly there has been no showing of corporeal possession of the bed of the river either by enclosure by natural or artificial marks or by inch by inch possession. The plaintiffs have failed to meet their statutorily imposed burden of proof in this possessory action, and so may not succeed.

Decree

For the foregoing reasons, the judgment of the Court of Appeal upholding the district court’s recognition of the right of plaintiffs’ to be maintained in possession of immovable property to the thread or cen-terline of the Amite River, and ordering the state to file a petitory action within sixty days after judgment becomes executory, is reversed. Plaintiffs’ cases are dismissed with prejudice.

REVERSED; DISMISSED.

LEMMON, J., concurs.

MARCUS, J., concurs and assigns reasons.

DIXON, C.J., concurs in result only. (See my dissent in Todd.)

MARCUS, Justice

(concurring).

Based on my dissent in Todd v. State of Louisiana, through the Department of Natural Resources of the State of Louisiana, No. 82-C-2915, (La., Nov. 28, 1983), and my agreement with the majority’s conclusion that plaintiffs failed to meet their statutorily imposed burden of proof in this possessory action, I respectfully concur.

      . In Todd v. State of Louisiana, et al., (La.1983) (No. 82-C-2915, November 28, 1983 rehearing granted, January 5, 1984), we found that a pos-sessory action may indeed be brought against the State of Louisiana; but decided that La. C.C.P. 3662(2) [which required the trial judge upon request of the plaintiff to order the loser in a possessory action to file a petitory action within a maximum of sixty days or lose the right to challenge the ownership thereafter] was unconstitutional as applied to the state because of the prohibition in La. Const. art. 12 § 13 against the running of prescription against the state in any civil matter; and pretermitted consideration of the nature of the burden of proof the state would have in any subsequent ownership litigation.

      . The area in dispute traverses Sections 44, 46, 50, 51, 56 and 57 of T-3-S, R-4-E, St. Helena Parish; and Sections 43, 45, 52 and 53, T-3-S, R-4-S, East Feliciana Parish. The Amite River throughout its course as well as in the area of dispute, runs roughly north to south and is the dividing line between St. Helena and East Feliciana Parishes.

      . Wemple v. Eastham, 150 La. 247, 90 So. 637 (1922); Amite Gravel and Sand Co. v. Roseland Gravel Co., 148 La. 704, 87 So. 718 (1921); A. Yiannoupoulous, 2 La.Civ.Law Treatise § 46, 130 et seq. (2d ed. 1980).

      .. Note that in Todd we found that the sixty day period was unconstitutional as applied to the state. See note 1, supra.

      . In the City of New Orleans v. New Orleans Canal, Inc., 412 So.2d 975 (La.1982), the property in dispute was a 40' wide strip of flat, open, undeveloped ‘‘neutral ground" in the City of New Orleans. The City claimed possession of the 40' tract through construction and repair of streets, mowing the grass, and picking up trash. On rehearing, 412 So.2d 981 (La.1982), the Court decided that the City failed to establish the extent of its claim, given the nature of the property involved. The strip claimed was unenclosed with no determinable boundaries, being entirely indistinguishable from the adjacent grassy right of way on the one side and from the two open unoccupied strips on the other, owned respectively by New Orleans Canal, Inc. and by the state.

      . La.C.C. art. 506 provides: "In the absence of title or prescription, the beds of nonnavigable rivers or streams belong to the riparian owners along a line drawn in the middle of the bed.” Accord Wemple v. Eastham, 150 La. 247, 90 So. 637 (1922); Amite Gravel & Sand Co. v. Roseland Gravel Co., 148 La. 704, 87 So. 718 (1921).


text:
    STATE of Louisiana, ex rel. Marvin MILLER v. Hon. Matthew S. BRANIFF, Judge, Criminal District Court, Section B, Parish of Orleans.
    No. 83-KH-2555.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Marvin Miller, applying for writ of mandamus, Orleans Parish, Criminal District Court, No. 251-951.

Motion to dismiss granted on relator’s request.


text:
    STATE of Louisiana ex rel. Michael COOPER v. STATE of Louisiana, et al., Ross Maggio, Jr., Warden Louisiana State Penitentiary.
    No. 83-KP-1783.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Michael Cooper, applying for supervisory writs, to the Criminal District Court, Parish of Orleans, No. 252-945.

Case below: 441 So.2d 205.

Granted. The defendant’s sentence is vacated. It is ordered that a new sentencing hearing be conducted in compliance with C.Cr.P. 894.1 before a judge other than the original sentencing judge.

MARCUS and WATSON, JJ., dissent.


text:
    William H. SCOGGINS v. Cecil JONES, James H. Brown, Secretary of State, Jerry Fowler, Commissioner of Elections, et al.
    No. 83-C-2483.
    Supreme Court of Louisiana.
    Dec. 12, 1983.
   In re Cecil Jones, applying for writ of certiorari, from the Second Circuit Court of Appeal, No. 16172-CA, Parish of West Carroll, to the Fifth Judicial District Court.

Case below: 442 So.2d 1202.

Denied.


text:
    SOUTH LOUISIANA PRODUCTION ASSOCIATION v. Gilbert G. DUFRENE, Sr.
    No. 83-CC-2426.
    Supreme Court of Louisiana.
    Jan. 9, 1984.
   In re Gilbert G. Dufrene, Sr., applying for reconsideration of writ granted with order December 9, 1983, 442 So.2d 465, to the Twenty-Ninth Judicial District Court, No. 26476, from the Fifth-Circuit Court of Appeal, No. 83-C-752.

Denied.


text:
    STATE In the Interest of Amanda and Michael GRAY.
    No. 84-CC-0077.
    Supreme Court of Louisiana.
    Jan. 13, 1984.
   In re Elijah Gray, applying for writ of certiorari, prohibition and stay order, to the Juvenile Court for the Parish of Orleans, Section “E”, No. 199-679, from the Fourth Circuit Court of Appeal, No. C 1681.

Denied.


text:
    STATE of Louisiana v. Carey LASSEIGNE.
    No. 83-KH-2578.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Carey Lasseigne, applying for writ of remedial writ, to the Sixteenth Judicial District Court, Parish of St. Martin, No. 63577.

Granted. Out of time appeal granted to the Court of Appeal.


text:
    STATE ex rel. Willie FOLEY v. STATE of Louisiana.
    No. 83-KH-2393.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Willie Foley, applying for writ of mandamus from the Criminal District Court, Parish of Orleans, No. 279-500.

Granted to transfer to trial court.


text:
    STATE of Louisiana, ex rel. Charles Ray SMITH v. W. Orie HUNTER, Jr., Clerk of Court In and For the PARISH OF CADDO.
    No. 83-KH-2644.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Charles Ray Smith, applying for supervisory and remedial writs and writ of mandamus, First Judicial District Court, Caddo Parish, No. 297591, Civil Division.

Transferred to Second Circuit Court of Appeal for consideration as a civil matter.


text:
    STATE of Louisiana, ex rel. Ernie James TALLEY v. Ned E. DOUCET, Jr., District Judge, 16th Judicial District Court, Parish of St. Martin, State of Louisiana, St. Martinville, Louisiana.
    No. 83-KH-0792.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Ernie James Talley, applying for writ of certiorari, or review, Parish of St. Martin, No. 59841.

Granted. It is ordered that relator be granted credit for time served. Otherwise denied.


text:
    STATE of Louisiana v. Evans BROWN.
    No. 83-KH-0497.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Evans Brown, applying for reconsideration on denied writ of December 16, 1983, 442 So.2d 479, from the Criminal District Court, Nos. 52321 and 52500, Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Barry Don PAYNE v. Hon. Baron B. BOURG, Judge and Hon. Robert Boudreaux, Clerk 32nd Judicial District Court Parish of Terrebonne.
    No. 83-KH-1603.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Barry Don Payne, applying for reconsideration on denied writ of December 9, 1983, 442 So.2d 473, from the 32nd Judicial District Court, Parish of Terrebonne, No. 95-539.

Denied. Nonetheless, it is to be noted that relator’s petition complaining of the district court’s ruling denying him transcripts and dated 9/15/83 is pending in the Court in # 83-KH-2197.


text:
    STATE of Louisiana, ex rel. Samuel J. TROPEZ, Jr. v. Attorney General William GUSTE, Jr., John T. King, Secretary of Department of Corrections, et al., Ross Maggio, Warden.
    No. 83-KH-0591.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Samuel J. Tropez, Jr., applying for supervisory writs, Orleans Parish, Nos. 200-175 and 194-683.

Denied.


text:
    STATE of Louisiana ex rel. Curtis GORDON v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 83-KH-0769.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Curtis Gordon, applying for writs of certiorari and Habeas Corpus, Parish of Orleans, No. 248-250 “I”. Criminal District Court.

Denied.


text:
    STATE of Louisiana v. Gerald SEARLES.
    No. 83-KH-0807.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Gerald Searles, applying for writ of certiorari and review, Parish of Jefferson, No. 77-320.

Denied.


text:
    STATE of Louisiana, ex rel. Joseph Louis STEVENSON v. John T. KING, Secretary, Louisiana State Penitentiary.
    No. 83-KH-0816.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Joseph Louis Stevenson, applying for remedial writs, Parish of Calcasieu, No. 3060-78, 14th Judicial District Court.

Denied.


text:
    STATE of Louisiana, ex rel. Dwight A. SORINA v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-0817.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Dwight A. Sorina, applying for writ of habeas corpus or certiorari, Parish of St. Tammany, 22nd Judicial District Court.

Denied.


text:
    STATE of Louisiana ex rel., Roy SAWYER v. Matthew S. BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 83-KH-0819.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Roy Sawyer, applying for writ of mandamus, Criminal District Court, Parish of Orleans, No. 257-074, Sect. B.

Denied.


text:
    STATE of Louisiana ex rel. Joseph Louis STEVENSON v. John T. KING, Secretary Department of Corrections.
    No. 83-KH-1157.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Joseph Louis Stevenson, applying for remedial writ, from the 14th Judicial District Court, Parish of Calcasieu, No. 3059-78. .

Denied.


text:
    STATE of Louisiana, ex rel., Warren JONES A.K.A. Ernest Givens v. Judge, Wallace C. LEBRUN 24th Judicial District Court Parish of Jefferson.
    No. 83-KH-2105.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Warren Jones, applying for writ of habeas corpus, Parish of Jefferson, No. 81-1251.

Denied. Relator must first apply to trial court.


text:
    Carolyn PINKNEY, Individually and on Behalf of her Deceased Husband, James Pinkney v. Alfred MILLER and New Orleans Public Service, Inc.
    No. 83-C-2186.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Carolyn Pinkney, applying for writ of certiorari, prohibition and mandamus to the Fourth Circuit Court of Appeal, No. 0598, Civil District Court, Parish of Orleans, No. 79-15686, Division “A”.

Case below: 439 So.2d 1113.

Denied. Result is correct.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana, ex rel., Barry Don PAYNE v. Hon. I. Robert BOUDREAUX, Clerk, Hon. Baron B. Bourg, Judge, 32nd Judicial District Court, Division “B”, Parish of Terrebonne, Houma, Louisiana.
    No. 83-KH-2197.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Barry Don Payne, applying for writ of certiorari, prohibition and mandamus, Parish of Terrebonne, No. 95539.

Denied.


text:
    STATE of Louisiana ex rel. Eugene WEBB, Jr. v. Hon. Rudolph F. BECKER, III, Sect. “E”, Criminal District Court, New Orleans, Louisiana.
    No. 83-KH-2215.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Eugene Webb, Jr., applying for writ of review from the Criminal District Court, Parish of Orleans, No. 277-286, Sec. “E”.

Denied.


text:
    STATE of Louisiana v. Ronald D. EDWARDS.
    No. 83-KP-2279.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Ronald D. Edwards, applying for writ of certiorari, from the 24th Judicial District Court, Parish of Jefferson, No. 79-510.

Denied.

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


text:
    STATE of Louisiana v. Albert STONER.
    No. 83-K-2338.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Albert Stoner, applying for writ of certiorari and/or review to the Third Circuit Court of Appeal, No. CR83-200, 14th Judicial District Court, Parish of Calcasieu, No. 12268-82.

Case below: 438 So.2d 1275.

Denied.

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


text:
    STATE of Louisiana ex rel. Floyd CURLEY v. LOUISIANA STATE PENITENTIARY Ross Maggio, Jr. Warden.
    No. 83-KH-2374.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Floyd Curley, applying for writ of mandamus from the Criminal District Court, Parish of Orleans, No. 236-695.

Denied.


text:
    STATE of Louisiana ex rel. Reginald WILLIAMS v. LOUISIANA STATE PENITENTIARY Ross Maggio, Jr., Warden.
    No. 83-KH-2442.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Reginald Williams, applying for writ of habeas corpus to Criminal District Court, Parish of Orleans, No. 275-987.

Denied.. Appeal pending in Court of Appeal.


text:
    ALLIED CHEMICAL CORPORATION v. Maude S. DYE, et al.
    No. 83-C-2482.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Fred Pee, Harold L. Woods, Jr., William E. Dent, Jr., William E. Dent, III, Ralph N. Saber, John 0. Clay, and James Hastings Walters, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Nos. 15744-CA; 15745-CA; 15746-CA (consolidated cases); Third Judicial District Court, Parish of Lincoln, Nos. 30501; 31112; 31113 (consolidated cases).

Case below: 441 So.2d 776.

Denied.

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


text:
    STATE of Louisiana ex rel., Leonard DOWELL v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-2494.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Leonard Dowell, applying for writ of mandamus from the Fifteenth Judicial District Court, Parish of Lafayette, No. 42207.

Denied. The trial court has ordered that the guilty plea transcript be furnished to relator.


text:
    STATE of Louisiana ex rel. Billy Roy TYLER v. SECOND CIRCUIT COURT OF APPEAL.
    No. 83-KH-2496.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Billy Roy Tyler, applying for remedial writ from the 26th Judicial District Court, Parish of Bossier, No. 60-706.

Denied.

DENNIS, J., would grant-the writ.


text:
    STATE of Louisiana v. Bobby Ray BROWN.
    No. 83-K-2510.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Bobby Ray Brown, applying for writ of certiorari, to the Third Circuit Court of Appeal, No. CR 83121, from the Thirty-Fifth Judicial District Court, Parish of Grant, No. 37362.

Case below: 440 So.2d 994.

Denied,

WATSON, J., would grant the writ.


text:
    CITY OF LAKE CHARLES v. DAVE’S SWEDISH SPA RESORT, INC.
    No. 83-C-2515.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Dave’s Swedish Spa Resort, Inc., applying for writ of certiorari or review, to the Third Circuit Court of Appeal, No. 83-269, Parish of Calcasieu, Fourteenth Judicial District Court, No. 81-6058.

Case below: 441 So.2d 50.

Denied.


text:
    David PERRODIN v. Evelyn ZANDER and State Farm Insurance Company.
    No. 83-C-2518.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Evelyn Zander, applying for writ of review to the Third Circuit Court of Appeal, No. 83-213, 13th Judicial District Court, Parish of Evangeline, No. 37437.

Case below: 441 So.2d 12.

Denied.


text:
    June M. ROBERTS v. SONIC DRIVE INN OF MARKSVILLE INC. and North River Insurance Co.
    No. 83-C-2520.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Sonic Drive Inn of Marksville, Inc. and North River Insurance Co., applying for a writ of certiorari to the Third Circuit Court of Appeal No. 83-224, from the 12th Judicial District Court, Parish of Avoyelles, No. 82-1985.

Case below: 441 So.2d 24.

Denied.

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


text:
    Sion Smith TATUM and Helen Myers Tatum v. VILLAGE OF CONVERSE.
    No. 83-C-2522.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Village of Converse, applying for writ of certiorari and review to the Third Circuit Court of Appeal, No. 83-188, from the Eleventh Judicial District Court, Parish of Sabine, No. 33731.

Case below: 440 So.2d 1354.

Denied.


text:
    Jean Hebert MILLER and Anita Hebert Duplechin v. CALCASIEU PARISH POLICE JURY and Donald Broussard.
    No. 83-C-2523.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Jean Hebert Miller and Anita Hebert Duplechin, applying for writ of certio-rari, to the Third Circuit Court of Appeal, No. 83-220, Parish of Calcasieu, Fourteenth Judicial District Court, No. 78-5523.

Case below: 441 So.2d 306.

Denied.

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


text:
    STATE of Louisiana v. Larry A. DUNN.
    No. 83-K-2524.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Larry A. Dunn, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit, No. CR-83-371, 35th' Judicial District Court, Grant Parish, No. 40403.

Case below: 442 So.2d 1166.

Denied.


text:
    STATE of Louisiana, ex rel. Charles E. MARSHALL v. Hon. Arthur J. PLANCHARD, District Court Judge.
    No. 83-KH-2525.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Charles E. Marshall, applying for writ of mandamus from the Fourteenth Judicial District Court, No. 1914-80, Parish of Calcasieu.

Denied.


text:
    The COWLEY CORPORATION v. SHREVEPORT PACKING COMPANY, INC. OF KANSAS.
    No. 83-C-2529.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Shreveport Packing Company, Inc. of Kansas, applying for certiorari, or writ of review to the Court of Appeal, Second Circuit, No. 15,598-CA, First Judicial District Court, Caddo Parish, No. 281231.

Case below: 440 So.2d 1345.

Denied.


text:
    STATE of Louisiana v. Robert L. RIDGLEY.
    No. 83-KP-2534.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Robert L. Ridgley, applying for writ of review to the Eighteenth Judicial District Court, Parish of Pointe Coupee, Nos. 24664 and 24879.

Denied.


text:
    Glen MENARD v. ROY YOUNG, INC.
    No. 83-C-2535.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Glen Menard, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit, No. 83-226, from the Fifteenth Judicial District Court, Lafayette Parish, No. 82-1194-C.

Case below: 441 So.2d 28.

Denied.


text:
    STATE of Louisiana v. Frederick HOWARD.
    No. 83-K-2536.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Frederick Howard, applying for writ of certiorari, to the Court of Appeal, Fourth Circuit, No. KA-0620, Parish of Orleans, Criminal District Court, No. 286-207.

Case below: 441 So.2d 389.

Denied.


text:
    STATE of Louisiana v. Joseph DAIGLE.
    No. 83-K-2538.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Joseph Daigle, applying for certio-rari, or writ of review to the Court of Appeal, Third Circuit, No. CR 82-819, 15th Judicial District Court, Lafayette Parish, No. 46280.

Case below: 440 So.2d 230.

Denied.

DIXON, C.J., concurs in the denial. However, the Court of Appeal was in error in Assignment # 9, but no prejudice has been shown.


text:
    Guy VERNON v. AETNA LIFE & CASUALTY INS. CO. et al.
    No. 83-C-2545.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Aetna Life & Casualty Ins. Co. et al., applying for writ of certiorari and/or review to the First Circuit Court of Appeal, No. 83-CA-2545, 21st Judicial District Court, Parish of Tangipahoa, No. 55761 Division “E”.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Janet L. ARMSTRONG.
    No. 83-K-2547.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Janet L. Armstrong, applying for writ of certiorari and/or review to the Second Circuit Court of Appeal, No. 15569-KA, 1st Judicial District Court, Parish of Caddo, No. 121684.

Case below: 440 So.2d 853.

Denied.

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


text:
    Johnny JOHNSON v. Matthew B. LARSON, the Vernon Parish Sheriff's Office and Dairyland Ins. Co.
    No. 83-C-2548.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Johnny Johnson, applying for writ of certiorari, to the Third Circuit Court of Appeal, No. 83-190, from the Thirtieth Judicial District Court, Parish of Vernon, No. 31188.

Case below: 441 So.2d 5.

Denied.


text:
    STATE of Louisiana ex rel. Billy Roy TYLER v. Judge CAMPBELL, 26th Judicial Court.
    No. 83-KH-2638.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Billy Roy Tyler, applying for supervisory writ to the 26th Judicial District Court, Parish of Bossier.

Denied.


text:
    STATE of Louisiana v. John TUSCANO.
    No. 84-KH-0006.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re John Tuscano, applying for writ of review to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 82-3257, Section “J”.

Denied.


text:
    Andrea Clesi FERTITTA and Jack Gathian Fertitta v. ALLSTATE INSURANCE CO. and Paula McCarron.
    No. 83-C-2616.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Andrea Clesi Fertitta and Jack Gat-hian Fertitta, applying for writs of certiora-ri and review, from the 19th Judicial District Court, No. 245115, Parish of East Baton Rouge, First Circuit Court of Appeal, No. 82-CA-1101.

Case below: 439 So.2d 531, 441 So.2d 1250.

Granted.

Consolidated with No. 2294, granted 12/16/83.


text:
    George Ferdinand BENTLEY, Jr. v. Paula Daigrepont BENTLEY.
    No. 83-C-2537.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Paula Daigrepont Bentley, applying for writ of certiorari, and review, to the Third Circuit Court of Appeal, No. 83-413, from the Fifteenth Judicial District Court, Parish of Lafayette, No. 78-2074-D.

Case below: 433 So.2d 837, 440 So.2d 1365.

Denied.


text:
    STATE of Louisiana, ex rel. Raphael J. JENKINS, et al. v. Odom GRAVES, Sheriff, et al., Abe Ross, Warden, et al. of Livingston Parish Jail, Livingston, Louisiana.
    No. 83-KH-0757.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Raphael J. Jenkins, et al., applying for remedial writ, Parish of Livingston.

Granted for the purpose of transferring to the district court for action.


text:
    STATE of Louisiana v. Leslie LOWENFIELD.
    No. 84-KH-0026.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Leslie Lowenfield, applying for remedial writs, from the Twenty-Fourth Judicial District Court, Parish of Jefferson.

Granted and transferred to the Court of Appeal, Fifth Circuit.


text:
    STATE of Louisiana, ex rel. Samuel Lee STARKS v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-0313.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Samuel Lee Starks, applying for remedial writs of certiorari and habeas corpus, Parish of Ouachita, 4th Judicial District Court, Nos. 31723, 31724, 31725, and 31726.

Denied.


text:
    STATE of Louisiana, ex rel. Robert C. WAGNER v. Ross MAGGIO, Jr., Warden, and Louisiana Department of Corrections, et al.
    No. 83-KH-0436.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Robert C. Wagner, applying for writs of habeas corpus, certiorari, mandamus, and other remedial writs, East Baton Rouge Parish, No. 72949.

Denied.


text:
    STATE of Louisiana, ex rel. David W. LEE v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-0701.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re David W. Lee, applying for supervisory writs, Parish of Livingston, No. 3890.

Denied.


text:
    STATE of Louisiana ex rel., Eddie Lee MARSHALL & Ernest Lester Anderson v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-0743.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Eddie Lee Marshall and Ernest Lester Anderson, applying for writ of habe-as corpus, Parish of East Baton Rouge, No. 1-5-76-725.

Denied.


text:
    STATE of Louisiana, ex rel. Derwin BOUREOIS v. Rudolph F. BECKER, III, Judge, Section “E”, Criminal District Court, Parish of Orleans, New Orleans, Louisiana.
    No. 83-KH-0812.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Derwin Boureois, applying for writs of certiorari and review, Parish of Orleans, No. 263-653, Criminal District Court, Section “E”.

Denied.


text:
    STATE of Louisiana ex rel., Eddie Fritz ARMSTRONG v. CRIMINAL DISTRICT COURT, SECTION “I”, PARISH OF ORLEANS.
    No. 83-KH-1645.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Eddie Fritz Armstrong, applying for writ of mandamus, Criminal District Court, Parish of Orleans, Nos. 286-444 and 286-578.

Denied. Moot.


text:
    STATE of Louisiana ex rel., David THOMAS v. HONORABLE PRESIDING JUDGE, 4TH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA.
    No. 83-KH-2356.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re David Thomas, applying for remedial writ, Parish of Ouachita, 4th Judicial District Court, No. 39,824.

Denied.


text:
    STATE of Louisiana ex rel., Wanda PARKER v. Hon. Paul R. WIMBISH, Judge and Clerk of Court, 32nd Judicial District Court, Parish of Terrebonne.
    No. 83-KH-2521.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Wanda Parker, applying for writ of mandamus, Parish of Terrebonne, 32nd Judicial District Court, No. 65903.

Denied. The district court has ordered the district attorney to answer relator’s petition.


text:
    Charles E. CLARK v. Juanita STONE.
    No. 83-CC-2544.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Juanita Stone, applying for writs of certiorari, mandamus and prohibition to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 239-097, Division “J”, from the Fifth Circuit Court, No. 83-C-778.

Denied.


text:
    STATE of Louisiana v. Joseph PALMISANO, Donald Dufrene and Charles Barrymore.
    No. 83-KK-2546.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Joseph Palmisano, Donald Dufrene and Charles Barrymore, applying for supervisory writs to Criminal District Court, Parish of Orleans, Nos. 132-522, 132-523, 188-322, Fourth Circuit Court of Appeal, Number K 1557.

Denied.

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


text:
    STATE of Louisiana v. Gordon WINSEY.
    No. 83-KK-2612.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Gordon Winsey, applying for remedial writs, from the Nineteenth Judicial District Court, No. 4-83-229, Parish of East Baton Rouge, First Circuit Court of Appeal, No. KW 83/1323.

Denied. Mooted by defendant’s guilty plea.


text:
    Herbert RODRIGUE, Burton G. Klein and Mary Borrell v. Alvin C. COPELAND and Popeye’s Famous Fried Chicken, Inc.
    No. 83-CC-2642.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re Herbert Rodrigue, Burton G. Klein, and Mary Borrell, applying for supervisory writs to the Court of Appeal, Fifth Circuit, No. 83-C-855, 24th Judicial District Court for the Parish of Jefferson, No. 389-098, C/W 289-142.

Denied. The matter is not moot, and as the Court of Appeal points out, plaintiff may proceed to trial on the merits for a permanent injunction.

WATSON, J., would simply deny the writ application.


text:
    STATE of Louisiana ex rel. August JONES v. ORLEANS PARISH CRIMINAL DISTRICT COURT.
    No. 83-KH-2643.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In re August Jones, applying for remedial writ to the Criminal District Court, Parish of Orleans, No. 298-441.

Denied.