author: WILLIAMS, Judge. SCHOTT, Judge

text:
    STATE of Louisiana v. Roy GARAY.
    No. KA-1746.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Rehearing Denied Aug. 24, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Susan Scott Hunt, E. Sue Bernie, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.
    George G. Angelus, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendant, Roy Garay, was charged with the violation of La.R.S. 14:81, indecent behavior with a juvenile. After a bench trial, defendant was convicted as charged. Defendant was sentenced to serve three years, six months in the custody of the Department of Corrections. Defendant appeals his conviction, and we affirm.

To fulfill a course requirement for his studies in Early Childhood Education at Delgado Community College, defendant began doing volunteer work at St. Vincent’s Infant Home in New Orleans. He began on February 28,1983, and, for three weeks, worked at St. Vincent’s on Mondays, Wednesdays and Fridays from 3:00 A.M. to 7:00 P.M. His duties were to assist the day care workers, primarily in general play activities, in Nursery Five, the nursery to which the victim, 5 year old Brenda, was assigned. Defendant was dismissed on March 21, 1981, because of suspected sexual improprieties with the victim, and because it had been discovered that defendant had been convicted of simple robbery and was on parole.

The state called as witnesses, the victim and three child care workers and a social worker from St. Vincent’s, while the defense called defendant and defendant’s mother.

Mary Dixon, a child care worker, testified that defendant spent an inappropriate amount of time at the nursery with Brenda, neglecting the other children, and that she expressed her concern over this to her supervisor, Dorothy Springs. Ms. Dixon testified that defendant spent a great deal of time holding Brenda on his lap. He did not hold her on his knees, but rather, sat her up close to him with her back against his chest, “close enough up to him so that she could rest her back against her chest, not leaning back.” Ms. Dixon had told defendant not to let Brenda sit on his lap.

Irma York, another child care worker, testified that she frequently saw defendant holding Brenda on his lap with her back facing up to his stomach. She had reported her concern over this behavior to her supervisor, Dorothy Springs, four or five times.

Ms. York also testified that she found defendant and Brenda alone in the nursery bathroom three times. The first time, she had noticed that Brenda was not with the other children. Defendant had told Ms. York that he was going to take a break to have a cigarette. Ms. York went to the bathroom and found defendant seated on a children’s shaver chair with his back to Brenda, who was standing over him, combing his hair. This occurred in the middle of March. The second time, Ms. York noticed that Brenda was missing and went to look for her in the bathroom. She found her alone with defendant in the bathroom, again combing defendant’s hair. Defendant had not told Ms. York that he was going on a break. The third time, defendant had told Ms. York twice that he was going to go smoke a cigarette in the bathroom. As Brenda had told Ms. York that she had to use the bathroom, Ms. York sent Sonya Johnson, another child care worker, into the bathroom to check. She saw Sonya come out of the bathroom with defendant and Brenda. Ms. York also reported one of these incidents to her supervisor.

Ms. York stated that she never saw defendant off alone with any child other than Brenda, nor had she ever seen defendant in the bathroom having his hair combed by any other child.

Sonya Johnson, a child care worker, testified that defendant spent more time with Brenda than with any of the other children, and that Brenda sat on defendant’s lap frequently. Ms. Johnson felt that the way defendant held Brenda on his lap, straddling him, was improper, and that a male volunteer should know better, especially with a child of Brenda’s age.

Ms. Johnson saw defendant and Brenda alone in the bathroom one time. Ms. York had asked her to look for Brenda in the bathroom. When Ms. Johnson shut the nursery door behind her, defendant came out of the bathroom, looked at her, and went back in. When Ms. Johnson reported this to Ms. York, Ms. York sent her back into the bathroom. The bathroom door was closed. Brenda was inside, standing on a face bowl combing defendant’s hair. She was wearing her sleeping apparel, a pajama top and underpants.

Brenda testified that defendant “put his thing up in me” five times. Each time she would be in the bathroom with defendant alone, wearing her sleeping apparel. She would comb defendant’s hair, and then defendant would pull her underwear down on her legs. In her own words, Brenda explained that defendant would be behind her, and would put his “thing” up in her on the bottom of her behind, and it would hurt. She later agreed that a “thing” was a penis.

Brenda testified that she was sure that Sonya Johnson witnessed one such incident in the bathroom because Brenda heard someone coming and heard someone lean over the sink to look into the bathroom. Brenda said that Ms. Johnson went and told Irma. Brenda testified that the first person she told was Cheryl George, and that Dorothy Springs was present in the office at the time.

Because Cheryl George, a social worker and the coordinator of volunteers, did not work in the nurseries she did not have the opportunity to observe Brenda and defendant together. Ms. George brought Brenda and Ms. Springs into her office because she had heard that child care workers had heard Brenda making vague statements about defendant, and that “the workers never really sat down with her and asked her about it.” Ms. George asked Brenda if defendant did something to her, and Brenda replied that defendant had taken her into the bathroom and put his thing in her, “down there.”

Ms. George testified that she had told defendant during her interview that he was not to be left alone with an individual child.

Defendant testified that Brenda would seek him out and insist he hold her, pushing the other children away, and that she would become angry when he would not hold her. Defendant said that other children enjoyed combing his hair, both in the nursery and in the bathroom, where he always kept the door partially open. Defendant said that he got no sexual gratification from having Brenda sit on his lap and could not understand someone enjoying sex with children. Defendant said that he was never told it was improper to be in the bathroom along with Brenda or to let her sit on his lap.

Defendant stated that Brenda was lying to the court and that most of what the St. Vincent’s workers testified was untruthful as well.

Defendant’s mother testified that defendant was part of a large family and had never had problems with the young children in the family, and that defendant had various girlfriends.

On appeal, defendant alleges trial court error in: (1) denying defendant the opportunity for an independent psychiatric examination of the victim; (2) allowing hearsay testimony from Dorothy Springs (Cheryl George); and (3) convicting defendant, because the essential elements of the offense were not proved beyond a reasonable doubt.

ASSIGNMENT OF ERROR NO. 1:

Defendant moved for an independent psychiatric examination of Brenda by a licensed psychiatrist of defendant’s choosing, asserting that this was the only way to determine whether Brenda’s perception of the alleged events was not actually confused with prior sexual abuse by her natural father or suspected sexual abuse suffered in her foster home. This motion was refused, while defendant’s alternative request, for access to all medical, psychiatric and social history reports of the victim from St. Vincent’s, was granted on August 1, 1983.

On appeal, defendant contends that his constitutional rights to present an effective defense and to confront the witnesses against him were prejudiced by the trial court’s denial of an independent psychiatric examination of Brenda. We disagree. Defendant was granted his alternative request. He received all records from St. Vincent’s eighteen days before the trial. He was provided an opportunity to question Brenda regarding her ability to distinguish between prior sexual abuse and the present case when her competency to testify was considered immediately prior to the commencement of defendant’s trial. The trial court carefully evaluated Brenda and concluded that she was a competent witness. That judgment deserves great weight. State v. Francis, 337 So.2d 487 (La.1976). Brenda’s trial testimony demonstrated a clear recollection of the factual details of the recent incidents with defendant. See State v. Nails, 255 La. 1070, 234 So.2d 184 (1970). This recollection was distinct from that of experiences she had earlier in her home situations. Additionally, defendant was afforded the channel of cross-examination to further test the clarity of Brenda’s recollection.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends that Cheryl George’s testimony concerning a statement made to her by Brenda should have been excluded because it did not come under the hearsay exception allowing admission of early out-of-court statements of a child-victim of sex offense. Defendant asserts that as Ms. George herself stated that she had called Brenda into her office because rumors created by vague statements by Brenda had been circulating among the child care workers, Brenda’s statement to Ms. George cannot be considered a “first complaint.” Defendant further asserts that according to the Associated Catholic Charities’ Preliminary Incident Report, made a part of the record, four to six days lapsed before Brenda’s statement to Ms. George, and further, Ms. George stated in an interview included in the report that Dorothy Springs had informed her of “a specific allegation” on the afternoon of March 22, 1983.

An exception to the general rule of inadmissibility of hearsay, La.R.S. 15:434, exists for res gestae, defined as “events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive, and spontaneous words and acts of the participants, and not the words of the participants when narrating the events.” La.R.S. 15:447. The Louisiana Supreme Court has repeatedly interpreted this provision to admit the original complaint of a young child when the particular facts and circumstances of the case indicate that it was a product of a shocking episode and not a fabrication. The original complaint of the young child is the statement made at the first reasonable opportunity under the particular facts and circumstances of the case. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Adams, 394 So.2d 1204 (La.1981); State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Noble, 342 So.2d 170 (La.1977); State v. Pace, 301 So.2d 323 (La.1974). The four year old victim in Noble was raped by her mother’s live-in boyfriend while her mother was away. Evidently her mother did not take notice of or denied what had happened and it was the victim’s great-grandmother, who came to babysit two days later, who noticed the victim was bleeding profusely from the vaginal area and elicited the victim’s statement. The court admitted the statement as it was “the four year old child’s first opportunity to discuss the crime with a person whom she loved and trusted outside the atmosphere of her home where the accused had been living with her mother for several months.” 342 So.2d at 173. The six year old victim in Pace was raped by a relative of her babysitter. The court considered that because “the victim was under the influence of the 24 year old defendant or persons closely related to him from the time of the occurrence until she returned home,” 301 So.2d at 326, the statement made at her first opportunity to speak with her parents when she arrived home was admissible. In Adams, the five year old victim was asked by an adult woman, some ten hours after her rape, who had done it to her. The victim’s statement identifying her stepfather was admitted because the court considered it made at the first opportunity the child had to speak with a friendly adult. The ten year old victim in Prestridge, raped by her mother’s lover with her mother’s approval, refused to answer her babysitter’s questions about the incident, which the babysitter had partially overheard, and retired to bed. The following morning, upon the babysitter’s prompting, the victim admitted she had been raped by Prestridge. The court admitted the statement.

A very young child raped by an adult standing in the position of parent, caretaker or friend cannot be expected to immediately come forward with a complete and exact report of the event. The courts have recognized that the child may be unable to speak about the incident until she considers herself safely in the presence of a compassionate adult whom she can trust. Because the child has no clear understanding of what has been done to her, her “original complaint” often consists of responses to the questioning of a patient, persistent adult who draws the child’s story from her.

Brenda apparently attempted to vaguely relate, either to her nurserymates or to the adults caring for her, defendant’s sexually molesting her. The adults who heard her intimations and failed to take the time to reassure her, listen patiently, and help her draw out an account to the best of her five year old ability were clearly at fault. Their failure to take action, however, should not render inadmissible Brenda’s statement to Ms. George, the first adult who actually took Brenda aside, reassured the child, and told Brenda that she wanted to hear what she had to say. We feel that Brenda’s statement to Ms. George was made at the first reasonable opportunity under the particular facts and circumstances of the case, and was, therefore, properly admitted.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3:

Defendant argues that the evidence was insufficient to support the verdict. The statute, .La.R.S. 14:81, reads in pertinent part:

Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person.

Upon viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have concluded that defendant, at 26 years of age, committed a lewd or lascivious act upon the person of/or in the presence of five year old Brenda with the intent of arousing or gratifying the sexual desires of either person. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Edwards, 400 So.2d 1370 (La.1981). We further find that, assuming every fact to be proved that the circumstantial evidence presented in this case tends to prove every reasonable hypotheses of innocence is excluded. La.R.S. 15:438; State v. Wright, 445 So.2d 1198 (La.1984).

This assignment of error is without merit.

For the foregoing reasons, the conviction and sentence of defendant is AFFIRMED.

AFFIRMED.

SCHOTT, Judge

concurring:

The majority correctly states the principle that the original complaint of a child, when the facts indicate that it was the product of a shocking episode and not a fabrication and when the statement was made at the first reasonable opportunity available to the child to speak to someone she trusted, is admissible under the res gestae exception to the hearsay rule. R.S. 15:447; State v. Prestridge, 399 So.2d 564 (La.1981); State v. Adams, 394 So.2d 1204 (La.1981); State v. Noble, 342 So.2d 170 (La.1977); State v. Pace, 301 So.2d 323 (La.1974). In State v. Anderson, 450 So.2d 684 (La.App. 4th Cir.1984) we found the statement of a nine year old girl to a social worker was inadmissible. The worker had removed the child from the defendant’s home two days previously, placed the child in a foster home, and called the child two days later “to see how the situation was going” when the statement was made. We concluded that the state failed to prove that this was the child’s first reasonable opportunity to make a complaint or that the complaint was the product of a shocking episode.

In the instant case the record is unclear as to the time lapse between the crime and the statement. Defendant worked at the home only a few hours each day so that the child had numerous opportunities to make her complaint. She knew several of the adult workers on a first name basis and was apparently close enough to them to confide in them on a spontaneous basis. She made her statement at a point considerably removed in time from the crime in an investigative setting where Ms. George called her in to question her about the rumors circulating at the home concerning defendant’s conduct with the child. The statement was not the product of a shocking episode in the sense that it was a spontaneous declaration made while the child was in a state of shock soon after the occurrence of the episode. These facts stand in sharp contrast with those of State v. Noble, supra, as well as the other cases cited by the majority.

However, I reach the same result as the majority because I am convinced beyond a reasonable doubt that Ms. George’s statement did not contribute to the trial judge’s conclusion of defendant’s guilt. Unlike State v. Banks, 439 So.2d 407 (La.1983) and State v. Anderson, supra, this case was tried to a judge, not a jury. Here the trial judge conducted a competency hearing before the trial and decided the child was competent to testify. He had to conclude that she knew what she was saying and could distinguish between right and wrong so as to tell the truth on the witness stand. The child testified without equivocation as to the crime and the corroborating circumstantial evidence of defendant’s guilt was overwhelming. The conclusion is inescapable that had the trial judge not believed the child he would have acquitted the defendant. He had to consider Ms. George’s testimony of what the child told her to be merely cumulative of the other evidence.

I concur in the result.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    NORRIS RADER, INC., Plaintiff-Appellee, v. Paul Lloyd DARTEZ d/b/a Dartez Construction Co., Defendant-Appellant.
    No. 83-796.
    Court of Appeal of Louisiana, Third Circuit.
    July 25, 1984.

      Armentor & Wattigny, Gerard B. Wattig-ny, New Iberia, for defendant-appellant.
    Mestayer & Simon, Stephen F. Mestayer, New Iberia, for plaintiff-appellee.
    Edward Moore and Julia Gilbert Moore, in pro. per.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This case involves a suit on an open account brought by Norris Rader, Inc. (hereinafter Rader), a vendor of building materials, against Paul Lloyd Dartez d/b/a Dartez Construction Company (hereinafter Dartez). Dartez brought a third party demand against Edward and Julie Moore, who were in the process of constructing an addition to their home. Rader sought to collect $5,543.50 allegedly owed by Dartez on building materials purchases, including attorney’s fees and legal interest. Dartez filed a general denial and brought a third party demand against the Moores, seeking judgment against them for any award made to Rader against Dartez.

Following a bench trial, judgment on the main demand was rendered in favor of Rader against Dartez in the principal sum of $5,543.30 plus 25% for attorney’s fees. Judgment for this same amount was also rendered in favor of Dartez in his third party demand against the Moores. Dartez appeals. Rader answers the appeal seeking an increase in attorney’s fees for the appeal.

FACTS

In early April 1981, Edward Moore sought to purchase building materials from Rader for the purpose of making additions to his home. A factual dispute as to how Rader was to be paid for those materials exists. Republican Jackson was an inside salesman for Rader, and he testified that Moore requested the materials be filled to the Paul Dartez account.

Dartez owned and operated the Dartez Construction Company and he had a charge account with Rader whereby he was billed monthly for his purchases. Dartez had been in the construction business for approximately thirty years and built homes which he sold to others. In the months of February 1981 through June 1981, Dartez’s purchases with Rader (reflected by his checks to Rader) averaged slightly less than $10,000.00 per month.

Moore was a cement subcontractor who had known Dartez for approximately fifteen years, and, during that time, Moore had done the cement work on a number of the homes built by Dartez. The home owned by the Moores had been built by Dartez in the late 1960’s, who had sold the house to them. Dartez, at the time of trial, still held a mortgage on the Moore’s home.

Upon learning of Moore’s desire to charge his building materials to the Dartez account, Jackson (Rader’s salesman) called Mr. Norris Rader, Sr., the President of Rader. According to Jackson, Mr. Rader left to telephone Dartez and returned saying that Dartez had agreed to allow Moore to charge his purchases to the Dartez account.

Mr. Rader testified that Moore would not have been allowed to charge purchases in his own name because of Moore’s unsatisfactory credit standing with Rader. (In March 1981, Rader had filed a suit against Moore to collect on an amount allegedly owed it by Moore.) Mr. Rader stated that he did telephone Dartez who authorized Moore’s purchases to his account. According to Mr. Rader, Dartez “definitely” knew that he was going to be billed for Moore’s purchases.

Stephen Van Cleve was a salesman for Rader, and he handled the Dartez account. Van Cleve had known Dartez for approximately six years and had previously handled purchases by Dartez when Van Cleve worked for another building material supplier. Van Cleve was asked by Mr. Rader to confirm Dartez’s assurances that he would allow Moore to charge items to the Dartez account. Van Cleve testified that he did speak with Dartez who agreed that Moore could charge on his account with Rader. These assurances were relayed to Jackson by Van Cleve. Some time later, after Moore had charged approximately $4,000.00 to the Dartez account, Van Cleve said that he again approached Dartez concerning Moore’s purchases and that Dartez once more approved of the purchases. Jackson, Van Cleve and Mr. Rader testified that they knew that Moore’s purchases were for materials being used in the Moore house. Further, each testified that Dartez was considered responsible for paying the charges made by Moore, and only Dartez was billed for these charges. Payment was not sought from Moore.

On April 6,1981, Moore signed an invoice for $2,346.44 with Rader representing building materials received by him. That invoice was charged to the Dartez account. When Dartez made his lump sum payment to Rader in May 1981 for his April purchases ($10,291.62), this included payment for the $2,346.44 in materials received by Moore. In May 1981, Moore made six more charges, all to the Dartez account totaling $3,185.43. When Dartez made his payment in June (of $12,428.46), he included payment for the invoices signed by Moore. (Rader included, in its bills to its customers, copies of the invoices representing the charges incurred.) Therefore, Dartez paid a total of $5,531.87 on Moore’s purchases in April and May.

Dartez, on the other hand, testified that he had never authorized Moore to make charges to his account, and he denied making any of the statements attributed to him by Van Cleve and Mr. Rader. Dartez stated that he first became aware of Moore’s charges to his account after viewing his May invoices several days after writing his June check to Rader. He averred that the payments by him were made in error and stated that he told Van Cleve that he would not be responsible for Moore’s charges.

The testimony by Moore which was pertinent to the issues states as follows:

“Q. Okay. And you weren’t extended credit by Mr. Rader, isn’t that correct? He didn’t give you credit, did he?
“A. No, he didn’t.
“Q. Okay. Then who did he give credit to? Do you know that?
“A. He gave credit to Mr. Paul Dar-tez.
“Q. Okay.
“A. That’s right.
“Q. Do you know that he was looking'to Mr. Dartez to get paid?
“A. And Mr. Dartez was looking at me for his money. That’s where it’s at right now. That’s where it’s at. ”

Moore made several more purchases from Rader in June and July, the last occurring on July 14,1981. Those purchases, totaling $4,389.20, were all charged to the Dartez account. Dartez refused to pay this amount. This sum was later paid by Moore with money received by him from a loan made by a finance company.

Prior to June 1981, Rader billed Dartez for all of his monthly charges in one lump sum. In June Rader began its billing by Computer and kept a separate record of the charges incurred by Dartez on each of his construction jobs. At that time Dartez was in the process of building several business speculation homes, two of which we shall refer to herein as Job 12 and Job 13. In June and July 1981, Dartez charged with Rader $7,093.84 for Job 12. From June through August 1981, Dartez charged more than $7,000.00 for Job 13.

On August 10, 1981, Dartez sent Rader a check for $7,527.62, indicating on the bottom of the check that it was to be credited for Dartez’s charges on Jobs 12 and 13. Rader complied with the request by crediting $7,093.84 to Job 12 (paying that account in full) and the balance ($433.78) was credited to Job 13. On October 23, 1981, Rader’s records reflected that another payment was credited to Job 13 in the amount of $1,685.28. This left a balance due on Job 13 of $5,543.30, the sum sued for in this suit.

Demand on Dartez for payment on this account was made by Rader on September 15, 1981, and this suit was filed by Rader on April 1, 1982, seeking the $5,543.30 balance remaining on Job 13.

The posture of Rader was that the Moore’s purchases had been paid in full: Dartez had paid a total of $5,531.87 for Moore’s purchases in April and May 1981, and the finance company paid the balance owed Rader by the Moores of $4,389.20. Rader sought to simply collect the balance on Job 13 of $5,543.30.

Dartez took the position that any amount he had paid Rader for Moore’s purchases was in error, and that he should have been given credit for the two payments in May and June on the Moore charges of $5,531.87.

After considering the conflicting testimony between the parties as to who would be responsible for paying Moore’s charges, the trial court found that Dartez had agreed that those purchases could be charged to his account. The lower court then recognized Rader’s claim to the $5,543.30 owed by Dartez on Job 13. Dar-tez’s third party claim against the Moores was recognized in the amount of $5,531.87, the amount of Moore’s charges paid by Dartez. Both Rader and Dartez were awarded 25% in attorney’s fees on the principal award to each plus legal interest.

ISSUE

The substantial issue raised by this appeal is:

Whether the trial court was clearly wrong in finding that Dartez agreed to allow Moore to make charges to the Dartez account and, if not, whether parol evidence for that agreement would be admissible.

Other less substantial questions are presented and will be disposed of herein.

RESPONSIBILITY OF DARTEZ

The trial court made the factual finding that Dartez did agree that Moore could make charges to Dartez’s account with Rader. We find that no manifest error exists in this finding. Van Cleve and Mr. Rader each testified that Dartez assured them that he would be responsible for charges by Moore. Each of Moore’s purchases were billed to the Dartez account, and payment was only sought from Dartez. Jackson and Mr. Rader testified consistently that Moore requested that his charges be billed to Dartez. The charges by Moore in April and May 1981 were, in fact, billed to and paid by Dartez.

Moore’s testimony (some quoted supra) supports the testimony of the plaintiff’s witnesses. Only Dartez denied his agreement to pay Moore’s charges. Therefore, the trial court’s finding that Dartez agreed to be billed for Moore’s charges is fully supported by the record.

Having found that Dartez did agree to become responsible for Moore’s charges, the next question becomes whether parol evidence of this agreement was admissible at trial. Counsel for Dartez timely objected to any parol evidence establishing Dar-tez’s obligation on the basis of LSA-C.C. art. 2278(3), which declares inadmissible any parol evidence seeking to “prove any promise to pay the debt of a third person.”

The courts have steadfastly recognized this rule which effectively requires suretyship agreements or agreements to pay the debt of another to be in writing; otherwise, parol evidence is not admissible to prove the existence of those agreements. See, e.g., Seashell, Inc. v. Simon, 398 So.2d 99 (La.App. 3rd Cir.1981); Star Sales Company v. Arnoult, 169 So.2d 178 (La.App. 4th Cir.1964). However, art. 2278 is subject to a well-recognized exception which was recently stated as follows:

“We must determine whether defendant’s promise to pay constituted a primary or collateral obligation. The decisive question which must be answered is: to whom was the credit extended? In order to determine to whom the credit was extended we must examine the relationship of the parties and the motive and pecuniary interest of the party making the promise. Seashell, Inc. v. Simon, 398 So.2d 99 (La.App. 3d Cir.1981); Star Sales Company v. Arnoult, 169 So.2d 178 (La.App. 4th Cir. 1964). If credit was extended to defendant, then parol evidence is admissible to prove defendant’s promise to pay, because the promise to pay constituted a primary obligation. ”

Marmedic, Inc. v. Intern. Ship Mgmt., 425 So.2d 878 (La.App. 4th Cir.1983).

In the instant case, the facts clearly reflect that Dartez was extended credit by Rader. Moore was not allowed to make charges in his own name with Rader because of his poor credit standing; the arrangement between the parties establishes that Dartez was the primary obligor of Moore’s purchases and parol evidence is admissible to prove Dartez’s promise to pay this primary obligation.

Dartez also argues that he should be released from liability to Rader because of the latter’s decision at trial to “abandon” its claim against the Moores. Rader had originally brought suit against both Dartez and the Moores. Rader, however, dismissed its claim against the Moores when it was discovered that all of Moore’s purchases had been paid. Dartez contends that Rader’s allegation that the Moores were jointly liable with Dartez, coupled with Rader’s subsequent decision to abandon any claim against the Moores, amounted to a release of liability as to Dartez. This argument is without merit. The facts show that, at the time of trial, no indebtedness was owed for purchases made by Moore. The dismissal of the Moores could not have the effect of releasing Dartez.

Dartez further alleges that the trial court erred in denying his motion for a new trial. The alleged basis for the new trial was the production of several invoices by Dartez (in his possession prior to trial) purportedly in conflict with testimony provided by Rader and accepted by the trial court. We have carefully examined the record and find no abuse of discretion in the trial court’s denial of Dartez’s motion for a new trial.

Rader filed an answer to the appeal seeking an award of additional attorney’s fees for the appeal. Rader seeks an additional award of 5% of the principal award, which amounts to approximately $275.00. We find an additional award of $275.00 as attorney’s fees to be appropriate.

For the foregoing reasons, the award of the trial court in the principal demand is amended by increasing the award of attorney’s fees in the amount of $275.00. In all other respects the trial court judgment is affirmed. Costs of this appeal are assessed to the defendant-appellant, Dartez.

AMENDED AND AFFIRMED.


author: KNOLL, Judge.

text:
    STATE in the Interest of FOUR MINOR CHILDREN.
    No. 84-414.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 6, 1984.
    Lloyd Keith Milam, Lake Charles, for defendant-appellant.
    Beverly Lawson, Dept, of Health and Human Resources, New Orleans, for plaintiff-appellee.
    Before LABORDE, YELYERTON and KNOLL, JJ.
   KNOLL, Judge.

The mother of four minor children appeals from the judgment of the trial court in favor of the Department of Health and Human Resources (DHHR), declaring the children abandoned, which in turn terminates her parental rights and obligations, making the children eligible for adoption. The names of the parties involved have been omitted in the title and in this opinion. The sole issue is whether the mother failed to provide for the care and support of the children for a period of at least four months, under circumstances showing an intent to permanently avoid parental responsibility. We affirm, finding the record presented clear and convincing evidence of the mother’s intent to permanently avoid her parental responsibility.

The guidelines in determining a child abandoned are set forth in LSA-R.S. 9:403. Pertinent to this case are the following:

“A. A child shall be considered abandoned when clear and convincing evidence is introduced at a judicial proceeding to prove either:
(1)(a) the child has been deserted for a period of at least four months by his parent or parents, the whereabouts of his parent or parents are unknown, the parent or parents have made no provision for the child’s care and support and have shown an intention to avoid parental responsibility; or
(b) the parent or parents have failed to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility.
(2) The introduction of clear and convincing evidence which establishes the facts required by Subparagraphs (l)(a) or (l)(b) of this Subsection shall create a presumption that the parent or parents intended to permanently avoid parental responsibilities. The child shall be declared abandoned unless the parent or parents present evidence that rebuts the presumption. A parent adjudged to have abandoned his child under Subparagraphs (l)(a) or (l)(b) shall thereafter have no right to object to or oppose any proceeding to adopt that child.”

The facts are undisputed. The mother, during most of her teenage years, gave birth to four children: male child D.O.B. July 21, 1973; male child D.O.B. August 12, 1974; female child D.O.B. January 10, 1977; and female child D.O.B. August 6, 1979. Each child has a different biological father. The mother was not married to any of the fathers and none of the fathers ever formally or informally acknowledged his child. The mother lived in poverty with her mother, Mrs. E.B., before, during and after the babies were born. All basically lived off Mrs. E.B.’s SSI monthly check of $237. Although the household was entitled to $204 worth of food stamps per month at a purchase price of $90, the mother bought only one-fourth of the amount certified, namely $51 for $22.

The mother’s work history is poor. She has earned very little income and relies on her mother, Mrs. E.B., to assist her with her children. Mrs. E.B. had two heart attacks and suffers from high blood pressure and arthritis.

DHHR has been working with and assisting the family since 1977. The family first came to its attention on a complaint of dental neglect on the oldest child; his front teeth were decayed to the gum line. The complaint was substantiated and oral surgery performed on the child. At the same time, the day care home reported that the first and second child attended so dirty that the day care mother had to bathe them and wash their clothes. From this point on, a deteriorating set of facts continued to develop for the children despite the assistance of DHHR, because the mother was not responsive.

In August 1977, it was reported that the third child, who was nine months old, was being fed only milk. The Christmas of 1977, the mother went to California leaving the children with Mrs. E.B., who stated she could not handle the children alone. In April 1978, their apartment was totally destroyed by a fire in the morning started by the two oldest children while the mother was sleeping. Because of unexcused and excessive absences during the school year of 1979-80, the oldest child was not promoted to the next level, and the pattern is developing for the other children. The mother has been arrested several times for shoplifting, and was convicted twice. In January 1980, the gas service was discontinued and the only heat in the home was an electric heater. In November 1980, the electrical service was disconnected for several weeks. During the same month, a complaint of physical abuse on the second child was received and substantiated. He was immediately removed and placed in the custody of the State in foster care. The following month the remaining children were likewise placed in foster care.

At the initial hearing in January 1981, the mother admitted the allegations in the removal petition. All of the children have remained in foster care since that date. There have been several hearings for continued custody of the children in the State which were not contested by the mother.

While the children were in foster care, DHHR made great efforts in trying to restore the family unit, but were unable because the mother was uncooperative and her conditions remained the same. It was determined that the mother had a drinking problem which she denied. Several appointments were made for her at a substance abuse clinic but she went only once. She failed to attend family team conferences arranged by DHHR despite letters, phone calls and personal visits by DHHR to encourage her to attend. She failed to exercise most of her visitation dates with the children and when she did, the visitation reports were not in her favor. Her last visitation with the children was July 30, 1982. By then, the mother had married Mr. F. and after this visitation, the children returned upset and disturbed because their mother and Mr. F. were drunk and exposed the children to their sexual activity. It was not until after the abandonment action was filed in October 1983, that the mother saw the children at Christmas. During that time, she contributed nothing for their care and support, a period in excess of a year.

Her circumstances are basically the same. She is still living with her mother. Her husband, Mr. F., is serving a six year term at DeQuincy for simple robbery. She has no income and has not had regular employment for the past two years, and there were no immediate prospects for work.

In Womack For Declaration of Abandonment, 411 So.2d 1237 (La.App. 3rd Cir. 1982), this court clearly stated the requirements in abandonment proceedings as follows:

“A child is considered abandoned when clear and convincing evidence is introduced at a judicial proceeding to prove the parents have failed to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility. LSA-R.S. 9:j03(A)(l)(b). The introduction of such evidence creates a presumption that the parents intended to permanently avoid parental responsibilities and the child will be declared abandoned unless the parent or parents present evidence that rebuts the presumption. LSA-R.S. 9:j03(A)(2). All reasonable doubt should be resolved against entering a decree of abandonment, which is in derogation of the natural rights of the legitimate parents. State, in Interest of McGruder, 386 So.2d 155 (La.App. 3 Cir.1980). However, once the trial court decrees a child abandoned it may place the child in the custody of an agency, person or persons, or make any other disposition of the child which is in its best interest. LSA-R.S. 9:403(C).”

In the present case, the mother does not contest the facts. She is contesting the abandonment action because she says she loves her children and wants another chance. The State proved its case by overwhelming evidence. The mother presented no evidence that rebuts the presumption that she intended to permanently avoid her parental responsibilities nor any evidence that she could provide for their care and support and perform her parental responsibilities. We find the evidence of the mother’s circumstances clearly manifest her intention to permanently avoid her parental responsibility. Absent an abuse of discretion by the trial court, its findings of fact will not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). We find the record fully supports the trial court.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Charles H. POSEY, Plaintiff-Appellee, v. Doyle SMITH, Defendant-Appellant.
    No. 83-830.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1984.

      Kidd & Kidd, Paul Henry Kidd, Monroe, for plaintiff-appellee.
    Douglas H. Allen, Winnfield, J.P. Mauf-fray, Jr., Jena, Jim W. Wiley, Winnfield, Gold, Little, Simon, Weems & Bruser, Dee D. Drell, Alexandria, for defendant-appellant.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   DOMENGEAUX, Judge.

Doyle Smith devolutively appeals from a refusal of the trial court to grant a preliminary injunction enjoining the sale of appellant’s immovable property. The property was seized under a writ of fieri facias to satisfy the trial court’s judgment signed June 14, 1982. Appellees are Charles Po-sey, Sherri Andrews Posey, and J.P. Mauf-fray, Jr.

On June 14, 1982, the trial court granted a money judgment for $32,500.00 against Doyle Smith in favor of Charles H. Posey and Sherri Andrews Posey. Smith then filed a motion for a new trial claiming that he had not received notice of the trial date. The trial court denied the motion and in February of 1983, this Court considered Smith’s appeal of the denial of that motion. See Posey v. Smith, 427 So.2d 928 (La.App. 3rd Cir.1983). In that case this Court affirmed the money judgment and found that Smith had received notice of trial.

On June 17, 1983, a writ of fieri facias was issued to enforce the judgment of June 14, 1982. On June 21, 1983, Smith filed an action for nullity seeking both a temporary restraining order and a preliminary injunction. In this action against the Poseys and J.P. Mauffray, Jr. (the Poseys’ attorney), Smith alleged that the June 14, 1982, judgment was a nullity and therefore should not be. enforced. Smith also named his former attorney, Joe Wilson, as defendant in the action of nullity but sought no in-junctive relief against him. The trial court signed the order which granted the temporary restraining order and set a hearing on the preliminary injunction for July 8, 1983.

On July 6 and July 7, 1983, J.P. Mauf-fray, Jr. and the Poseys separately filed motions to dissolve the temporary restraining order and for damages incident to the wrongful issuance of the temporary restraining order. The parties also separately filed dilatory and peremptory exceptions pursuant to appellant’s petitions.

At hearing on July 8,1983, the trial court considered the motions to dissolve the temporary restraining order and for damages for the wrongful issuance of the temporary restraining order but deferred hearing on the exceptions filed by the appellees. At the conclusion of the hearing the trial court rendered judgment which dissolved the temporary restraining order and denied the preliminary injunction. The trial court awarded the Poseys $500.00 (Five Hundred Dollars) damages as attorney’s fees but took under advisement Mauffray’s action for attorney’s fees.

This judgment was signed on July 28, 1983. Smith was granted a devolutive appeal on August 4, 1983. On August 12, 1983, the trial court granted a corrected judgment which awarded the Poseys $600.00 (Six hundred dollars) damages as attorney’s fees. The trial court also granted a corrected order of appeal which allowed the appellant a suspensive appeal from the award of damages but a devolu-tive appeal from the order refusing to grant the preliminary injunction. The appeal before us is the devolutive one from the preliminary injunction.

A trial court is vested with much discretion in determining whether to grant or refuse a preliminary injunction. Unless the discretion was erroneously exercised the trial judge’s determination will not be disturbed. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979). A review of the record reveals that there was no abuse of discretion in this case.

Article 2298 of the Louisiana Code of Civil Procedure states in pertinent part:

“Injunctive relief prohibiting the sheriff from proceeding with the sale of property seized under a writ of fieri facias shall be granted to the judgment debtor or to a third person claiming ownership of the seized property:
‡ # Jfc * S}5
(4) When the judgment sought to be executed is absolutely null.”

Smith claims that he should be granted injunctive relief prohibiting the sale of the property seized under a writ of fieri facias; Smith contends that the June 14, 1982, judgment to be executed was null since he did not receive notice of the trial. However, Article 2005 of the Louisiana Code of Civil Procedure states:

“A judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.”

In this case the June 14, 1982, judgment was affirmed by this appellate court in Posey v. Smith, supra. In that decision the court did consider the ground of nullity presented by the appellant, i.e., the lack of notice of trial date. La.C.C.P. article 2005, thus, applies, and the June 14, 1982, judgment cannot be annulled.

Both the trial court and this appellate court can regard the holding by this Circuit in Posey v. Smith, supra, as having binding precedential force. Under the procedural principle known as “law of the case,” which may be more appropriate than res judicata to describe the relation between prior judgments by the trial and appellate courts within the same case, the trial court was justified in refusing to try anew the identical factual issues already tried and decided in a previous aspect of the same case. Succession of Colin Cameron, 446 So.2d 948 (La.App. 3rd Cir.1984). As stated by the Supreme Court in Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81 (La.1973), among the reasons assigned for application of the law of the case principle are:

“the avoidance of indefinite relitigation of the «ame issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue.”

In Posey v. Smith, supra, this appellate court had already determined that the June 14, 1982, judgment was not a nullity. In refusing to grant the preliminary injunction, the trial court followed this appellate court’s holding that the judgment to be enforced was valid. Therefore, pursuant to the theory of the law of the case, the trial court’s ruling denying the preliminary injunction was consistent with the decision of this appellate court.

At a very late date in this appeal, appellant requested this Court to remand the case to the trial court. Smith alleges that, on November 14, 1983, the district court issued a preliminary injunction enjoining the proposed sale. However, the record before us indicates no injunctive relief issued at that hearing. Additionally, appellant contends that the appellate record is incomplete and enumerates seven items which he claims are not included in the record. We have reviewed the record extensively and found each petition, pleading, transcript portion and other documentary evidence contained therein.

Appellant’s “Motion to Remand” is denied. It is not necessary to supplement the appellate record because it is complete in its entirety. Furthermore, appellant is attempting to relitigate a matter in the trial court which has already been decided by this Court.

For the above and foregoing reasons the judgment of the trial court is affirmed. Costs are assessed against appellant, Doyle Smith.

AFFIRMED.


author: ROY NOBLE LEE, Presiding Justice,

text:
    Martha Moore BONDS v. George Mitchell BONDS and James J. Bates, Sheriff of Tishomingo County.
    No. 54269.
    Supreme Court of Mississippi.
    July 11, 1984.
    Rehearing Denied Aug. 8, 1984.
    Roy 0. Parker, Roy 0. Parker & Associates, Tupelo, for appellant.
    Duncan Lott, Langston & Lott, Boone-ville, for appellees.
    Before ROY NOBLE LEE, P.J., and BOWLING and DAN M. LEE, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Martha Moore Bonds has appealed from a decree of the Chancery Court of Tishom-ingo County., favorable to her and against James J. Bates, Sheriff of Tishomingo County, in the sum of sixteen hundred eighty dollars ($1,680), resulting from the failure of Sheriff Bates to return a writ of execution on the return date. She contends that the decree should have ordered payment of the full judgment in the amount of twenty-one thousand eight dollars ninety-four cents ($21,008.94). Sheriff Bates cross-appealed and contends that Mrs. Bonds was not entitled to a judgment against him for any sum.

I. — II.

Did the lower court err in awarding appellant $1,680.00 against the appellee, rather than $21,008.94, as provided by statute?

Did the lower court err in holding that there were not slight circumstances which relieved the appellee James J. Bates, Sheriff of Tishomingo County, from the penal application of Mississippi Code Annotated § 19-25-41 (1972), as amended?

The material facts of the case are uncon-tradicted. On May 24, 1977, the Chancery Court of Tishomingo County entered a decree awarding appellant judgment in the amount of $21,008.94 against George Mitchell Bonds for child support and alimony. Subsequently, a writ of garnishment was issued against Life and Casualty Insurance Company of Tennessee directed to the cash value of three separate insurance policies issued in the name of Bonds. See 409 So.2d 704 (Miss.1982). On January 27, 1981, a writ of execution was issued by the Chancery Clerk of Tishomingo County for the purpose of levying on certain personal property of Bonds and was returnable to the third Monday of February, 1981, being the first day of the February Term of Chancery Court in Tishomingo County.

The February, 1981 Term of the court convened and passed without the writ of execution being returned by Sheriff Bates. Likewise, no return was made on the writ of execution at the May, 1981 Term of the Tishomingo County Chancery Court.

On March 31,1981, a motion was filed by appellant’s attorney to recover judgment against the sheriff and his sureties for the amount of the execution (judgment) and was heard in vacation in June, 1981. The lower court found that the return was not made until June 2, 1981; that the sheriff had not been misled by the judgment creditor or her attorneys, either directly or indirectly, in any way; and that very slight circumstances were not present in the case which would exempt the sheriff and his sureties from liability imposed under Section 19-26-41.

The pertinent part of Section 19-25-41, with which we are confronted, follows:

If any sheriff or other officer properly authorized to act for him, shall fail to return any execution to him directed, on the return day thereof, the plaintiff in execution shall be entitled to recover judgment against the sheriff or other officer, and his sureties, for the amount of the execution and all costs, with lawful interest thereon until the same shall be paid, and with five per centum on the full amount of the judgment as damages, to be recovered by motion before the court to which the execution is returnable, on five days’ notice first being given thereof....

The above section dates back to Hutchinson’s Code of 1848 and has remained practically unchanged. Beginning with Morehead v. Holiday, 1 Smedes & M 625 (1844), which antedates Hutchinson’s Code of 1848, the Court cited a statute which provided that:

If any sheriff shall fail to return an execution to him directed, on the return day thereof, the plaintiff in the execution may recover judgment against such sheriff, and his sureties, for the amount of such execution, with five per cent damages, by motion before the court, to which said execution is returnable, with eight per centum interest on the same till paid. [1 Smedes & M at 627],

In construing the statute, the Morehead Court said:

This provision is too plain to require comment. The failure of the sheriff to make return in due time, renders him absolutely and without exception liable for the debt. The measure seems to be a harsh one, but having been imposed by the legislature, we have no power to dispense with it. The pleas offered interposed no bar to the recovery of the plaintiff. [1 Smedes & M at 627-28].

Beall v. Shattuck, 53 Miss. 358 (1876), affirmed Morehead in the following language: “It is the duty of the sheriff to return any execution to him directed on the return-day thereof. One day afterwards is too late. Steen v. Briggs, 3 S. & M. 326.” [53 Miss. at 362],

The Court recognized that the statute is highly penal and is to be strictly construed, and began to look at slight circumstances which may relieve sheriffs from the harsh penalty. In Watson v. Boyett, 151 Miss. 726, 118 So. 629 (1928), the Court said:

[M]ore than a slight circumstance calculated to throw the sheriff off his guard— to make him less diligent in the performance of the duties required of him by the statute. We are of the opinion that it was sufficient to relieve the sheriff from the extreme penalty of the statute. [151 Miss. at 733, 118 So. at 631].

Appellant and appellee cite Rawleigh, Co., Inc. v. Hester, 190 Miss. 329, 200 So. 250 (1941), where the Court said:

Wherever, indeed, statutes of this character are found they are regarded as of a character so highly penal that very slight circumstances are held to exempt officers from their operation. The rule is announced in 57 C.J. § 470 that: Where a process or writ is placed in the hands of a sheriff or constable for service or execution, he is liable if he fails to return the same within the time which is allowed by law for the making of his return thereon, and the fact that a return is made after the expiration of such time does not relieve him of liability for his default; but in order to enforce such liability, it must be shown that the writ was actually placed in his hands for execution, and that he actually failed to return it on the return day. [Citations omitted]. [190 Miss, at 339].

The last case brought to our attention which deals with this question is Nitto Denko America, Inc. v. ABCD Tapes, 419 So.2d 204 (Miss.1982). The Court, considering slight circumstances, said:

In the present case it is undisputed that Sheriff Hobbs through Deputy McKenna was as diligent as possible in trying to levy on the writ of execution. As stated, he made eight or ten trips and contacted all he knew to secure information about property on which the levy possibly could have been made. It is undisputed that all of his efforts to secure execution were made prior to the first day of the July 1980 term, and the writ of execution duly placed in the proper place to be returned to the clerk’s office. Through oversight the nulla bona stamp was not affixed to the writ of execution until seven days after the court term commenced. In our opinion, these undisputed facts certainly were “slight circumstances” which require that the highly penal statute not be applied. [419 So.2d at 107].

The lower court here found that there were no slight circumstances which would relieve the sheriff of all liability for failure to return the writ of execution. We agree. Simply stated, the sheriff of a county must comply with the statute. He is required to make his return on the writ of execution by the return date, unless there are sufficient circumstances that will excuse him. Therefore, we hold that Sheriff Bates is liable for his failure to make the return as required by statute.

The writ of execution in this case specifically enumerated the personal property upon which the levy was to be made. The Sheriff of Tishomingo County was directed “to cause certain personal property owned by George Mitchell Bonds to be sold at public sale ... the property is located in Tishomingo County, Mississippi, and is more particularly described as follows, to-wit, .... ” The lower court held it to be a special writ of execution. Many executions are directed to the officers and command “that of the real and personal estate of _ you cause to be made _dollars, ...” which is a general execution.

The lower court received evidence as to the value of the eight specific personal items enumerated in the writ of execution and awarded judgment for appellee against the sheriff for the value of that property. We think that the decision of the lower court was correct, together with his reasoning in support thereof. Therefore, the judgment of the lower court is affirmed on direct and cross-appeals.

AFFIRMED ON DIRECT AND CROSS-APPEALS.

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

APPENDIX

IN THE CHANCERY COURT OF TISHOMINGO COUNTY,

MISSISSIPPI

MARTHA MOORE BONDS,

Complainant

VS. CAUSE NO. 7353

GEORGE MITCHELL BONDS,

Defendant

WRIT OF EXECUTION

TO: THE SHERIFF OF

TISHOMINGO COUNTY, MISSISSIPPI

YOU ARE HEREBY COMMANDED to cause certain personal property owned by George Mitchell Bonds to be sold at public sale at the east door of the Tishomingo County Courthouse in Iuka, Mississippi, said sale being made to satisfy a judgment in favor of the Complainant, Martha Moore Bonds, in the amount of Twenty-One Thousand Six Dollars and Eighty-four Cents ($21,006.83) [sic] less the sum of One Thousand Dollars ($1,000.00) which has been paid plus penalties and interest, said judgment having been entered in the Chancery Court of Tishomingo County, Mississippi, on the 24th day of May, 1977.

The property is located in Tishomingo County, Mississippi, and is more particularly described as follows, to-wit:

1. One 1974 Chevrolet pickup truck.
2. One 1972 Buick automobile.
3. One sixteen-foot Cherokee runabout boat.
4. One eighty-five horsepower Mercury boat motor.
5. One Winchester shotgun.
6. One Coswell and Harrison shotgun.
7. One .22 caliber automatic Browning rifle.
8. One automatic Browning Ruler .44 magnum rifle.

And have you then and there, this writ with your return thereon, said writ being made returnable to the 3rd Monday in February, 1981.

WITNESS my hand, this the 27th day of January, A.D., 1981.

/s/ Robert D. Sims CHANCERY CLERK

      . The record reflects that a deputy sheriff went to the home of Bonds four or five times but was never able to contact him or to serve the writ of execution, nor did he find the property to levy on.


author: SULLIVAN, Justice,

text:
    A MISSISSIPPI ATTORNEY, Respondent/ Appellant, v. MISSISSIPPI STATE BAR, Complainant/Appellee.
    Conf. Misc. No. 63.
    Supreme Court of Mississippi.
    July 18, 1984.

      Fred L. Banks, Banks & Nichols, John L. Walker, Walker & Walker, Jackson, for respondent/appellant.
    Andrew J. Kilpatrick, Jr., Jackson, for complainant/appellee.
   SULLIVAN, Justice,

for the Court:

This is an appeal from a decision of a Mississippi State Bar Complaint Tribunal suspending a Mississippi attorney from the practice of law for 45 days. A complaint was lodged with the Mississippi State Bar against the Mississippi attorney alleging misconduct inside and outside the courtroom of a justice court judge. After investigation, investigatory hearing and further investigation, complaint counsel submitted his finding to the complaints committee. The complaints committee determined that there was a reasonable cause to believe that the Mississippi attorney was guilty of the alleged conduct and that if proven such conduct would warrant disbarment or suspension. The committee authorized complaint counsel to file a formal complaint which the Mississippi attorney answered by denying. A duly designated Complaint Tribunal held a formal hearing after which the Complaint Tribunal declared that the allegations against the Mississippi attorney were supported by clear and convincing evidence and the Mississippi attorney was suspended from the practice for 45 days. He perfects this appeal and assigns as error the following:

(1) The findings of the Complaint Tribunal were not supported by clear and convincing evidence;

(2) Sufficient weight was not given to the fact that the justice court judge did not find the Mississippi attorney in contempt of court;

(3) That it was error not to dismiss the complaint because of violations of his procedural rights; and

(4) That the 45 days suspension was excessive.

I.

WAS THE EVIDENCE OF MISCONDUCT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE?

The attorney is charged with violations of rules 1-102(A)(5), 1-102(A)(6), 7-106(C)(6), and 9-101(C).

DR 1-102(A)(5) and 1-102(A)(6) read as follows:

(A) A lawyer shall not:
* * * * * *
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
DR 7-106(C)(6) states that:
(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
* * J¡C * ¾< *
(6) Engage in undignified or discourteous conduct which is degrading to a tribunal.
DR 9-101(C) provides that:
(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.

The evidence indicates that the Mississippi attorney both outside and inside the courtroom of the justice court judge engaged in a verbal confrontation with the complainant in this cause, who was the opposing party in the litigation before the justice court. That verbal confrontation involved the use of profane language both by the complainant and the Mississippi attorney. When his conduct was repeated inside the courtroom the record reflects that the trial judge threatened the Mississippi attorney with contempt of court, though he was never held in contempt. Outside the courtroom, but in the presence of opposing counsel and the justice court judge, the Mississippi attorney stated that the judge would not have held him in contempt since he helped to get him elected. The record reflects that the justice court judge involved testified on behalf of the Mississippi attorney and that the judge is retired and elderly and could not remember anything about the incident due to extensive cancer treatments.

Based on this record, we find that the Complaints Tribunal properly applied in its opinion the “clear and convincing” standard as directed by this Court. Netterville v. Mississippi State Bar, 397 So.2d 878 (Miss.1981). Further, we are of the opinion that the conduct, clearly and convincingly shown by the evidence, is a violation of the Disciplinary Rules cited above.

The argument presented by the appellant is that the evidence presented by the Bar does not rise to the level of clear and convincing because the testimony of the witnesses against him was both confusing and inconsistent. There are differences in the testimony of the witnesses but they are slight, particularly when viewed through the spectrum of the three years that have passed from the time of this incident. We find no merit to appellant’s first assignment of error.

II.

WAS SUFFICIENT WEIGHT GIVEN TO THE FACT THAT THE TRIAL JUDGE DID NOT FIND THE MISSISSIPPI ATTORNEY IN CONTEMPT OF COURT?

This Court has never held that a trial judge’s testimony concerning his actions in the presence of misconduct is to be given greater weight than the testimony of other witnesses.

In Re Dore, 165 Wash. 225, 4 P.2d 1107 (1931) is cited by the appellant for the proposition that the judge’s refusal to cite the lawyer for contempt is conclusive evidence that no misconduct occurred. That appears to be the position taken by the state of Washington and it is contrasted with the position of the state of Kentucky as set forth in Kentucky State Bar Ass’n v. Smith, 503 S.W.2d 482 (Appeals Court of Ky.1973), which holds that although unethical conduct may be condoned by the judge of the police court of condemnation it can be no defense to a disciplinary proceeding.

We adopt as the rule in this state that the action of a trial judge in the presence of misconduct shall be considered along with all other evidence by this Court, but shall not of itself be conclusive upon this Court.

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

III.

WERE THE PROCEDURAL DUE PROCESS RIGHTS OF THE MISSISSIPPI ATTORNEY VIOLATED WHEN THE COMPLAINTS COUNSEL CONTINUED HIS INVESTIGATION AFTER THE INVESTIGATORY HEARING HAD PURSUANT TO MISSISSIPPI CODE ANNOTATED § 73-3-317 (1972) (Supp-1983) AND USED EVIDENCE AGAINST THE MISSISSIPPI ATTORNEY DISCOVERED SUBSEQUENT TO THE HEARING TO WHICH THE MISSISSIPPI ATTORNEY HAD NO KNOWLEDGE IN COUNSEL’S REPORT TO COMPLAINTS COMMITTEE?

Investigative hearings and complaints counsel reports are governed by Mississippi Code Annotated § 73-3-317 and Mississippi Code Annotated § 73-3-319 (Supp.1983).

Section 73-3-317 states:

§ 73-3-317. Complaint counsel — investigatory hearings — report of testimony and findings — response by accused attorney.
Complaint counsel will cause the testimony of any witnesses at an investigatory hearing to be taken and transcribed and shall certify the same to the committee on complaints, along with his written findings, within thirty (30) days from and after the date on which the complaint was received by him, except that, for good cause shown, upon application to the chairman of said committee, complaint counsel may be granted a total of not more than thirty (30) additional days in which to make said certification. A copy of complaint counsel’s report shall be sent to the accused attorney by certified mail, and the accused attorney shall have ten (10) days after the receipt by him of complaint counsel’s report to file a written response thereto with the committee on complaints. Upon application to the chairman of the said committee, the accused attorney may be granted such additional time as circumstances warrant.

Further, section 73-3-319 provides that: § 73-3-319. Committee on complaints; action to be taken upon receipt of complaint counsel’s report.

Within thirty (30) days of its receipt of complaint counsel’s report, the committee on complaints shall take the following action:
(a) If upon review of the record, complaint counsel’s report and any written response by the accused attorney, the committee determines that there is not reasonable ground to believe that the accused attorney has been guilty of unprofessional conduct or conduct evincing unfitness for the practice of law, the committee may either re-refer the matter to complaint counsel for further investigation or may dismiss the complaint and retire the file. In the latter event, the person filing the complaint, the accused attorney and the executive director of the Mississippi State Bar shall be given written notice of the committee’s determination.
(b) If upon review of the record, complaint counsel’s report and any written response by the accused attorney, the committee determines that there is reasonable ground to believe that the accused attorney has been guilty of unprofessional conduct or conduct evincing unfitness for the practice of law, and is of the further opinion that a reprimand of the accused attorney is all that justice requires and will adequately afford the disciplinary sanctions required by the particular circumstances, the committee may administer a private reprimand, or it may, in its discretion, make public the fact of the reprimand by having the same delivered in open court by the chancery or circuit court of the county of the accused attorney. However, such action shall not be taken except upon proper notice and hearing, such notice and hearing to be upon the same formal requirements and assuring to the accused attorney the same rights and privileges as provided in section 73-3-321 et seq. for hearings upon complaints which, if proven, would warrant suspension or disbarment. Further, any decision of the complaint tribunal to issue a reprimand shall be appealable in the same manner and to the same extent as provided in section 73-3-329. The committee, in its discretion, may require the accused attorney to appear before it for delivery of the reprimand or may forward it to him by registered mail. In any event, written notice of the delivery, of such reprimand shall be given to the person filing the complaint, the clerk of the court, the executive director of the Mississippi State Bar, and to the judges of the circuit and chancery court districts of the accused attorney.
(c) If the committee determines there is reasonable cause to believe the accused attorney is guilty of such conduct, which, if proven, would warrant suspension for a definite or an indefinite period or permanent disbarment, the committee shall direct complaint counsel in writing to prepare and file a formal complaint against the accused attorney. Complaint counsel shall prosecute the case to conclusion, unless the president of the Mississippi State Bar, in his sole discretion, shall appoint one or more active members of the state bar to either assist complaint counsel or to serve independently as trial attorney or attorneys in the prosecution of the proceeding to conclusion.

A motion hearing was had to dismiss the complaint on the basis that complaints counsel used evidence discovered after the investigatory hearing without giving the Mississippi attorney an opportunity to respond to the evidence in his report to the complaints committee. There was also a motion to strike. These motions were never ruled upon.

It is stipulated that at the investigatory hearing neither the complainant nor any of her witnesses appeared. Affidavits of the Mississippi attorney and his witnesses and the trial judge had been submitted prior to the hearing. No evidence was offered on behalf of the complainant at the hearing. Given an opportunity to make a statement at the investigatory hearing, the Mississippi attorney refused, reserving the right to do so in the event the complainant responded.

After the investigatory hearing, complaints counsel sought affidavits and they were submitted to him against the Mississippi attorney. The Mississippi attorney was not notified of the phone call of complaints counsel nor was he notified of the affidavits.

Thereafter, complaints counsel submitted his report to the complaints committee pursuant to § 73-3-317 and § 73-3-319 in order that they may consider (1) whether to reprimand the Mississippi Attorney publicly or privately or (2) whether to suggest to complaints counsel that sufficient evidence existed for a formal complaint asking for suspension or disbarment.

The gist of appellant’s argument is that the formal charges brought against him were brought on the basis of evidence to which he was not given an opportunity to respond violating his due process notice rights. He argued at the motion hearing that the procedure used against him violated the rules established by Netterville v. Mississippi State Bar, 397 So.2d 878 (Miss.1981).

The Complaints Tribunal ruled on the motion that there was no violation of the statutes by continuing investigation after the investigatory hearing. They further ruled that even though the attorney was not notified of the subsequent investigation when it occurred, he received sufficient notice upon receipt of complaint counsel’s report that further investigation had been conducted. They further found that the attorney had sufficient time to respond to the complaint counsel report between the time he received his copy and the time formal complaint was filed against him by the Bar, and that the attorney chose not to respond although he had every right to do so.

The Tribunal distinguished Netterville, saying that here no final action was taken by the complaints committee on the basis of evidence cited in complaint counsel’s report. Instead the committee merely recommended further action. They also found Netterville not to be applicable in any way since, it applied only to future disciplinary proceedings and was not retroactive in nature.

While the statute, § 73-3-317 does not preclude continued investigation after the investigatory hearing, the Court in Netterville held:

Where suspension or disbarment is not involved, on the basis of the report made up by complaints counsel as stated above, the complaints committee, if it has “cause to believe” that the accused attorney is guilty, shall find him guilty, and order his punishment, in this case, a private reprimand. We think that the requirements of due process, as well as traditional Anglo-American notions of fair play and substantial justice, are violated by this one-sided procedure. Fairness demands that an accused attorney be given the names and addresses of any witnesses whose testimony complaints counsel intends to take, together with a statement of the time and place where such testimony is to be taken, and be given the right to attend and cross-examine. The accused attorney must also have the right to take the testimony of witnesses of his own, in the same manner, their transcribed testimony also to become a part of the report.

Id. at 884.

However, the attorney was given notice of the subsequently obtained affidavits and was afforded a full opportunity to respond. He chose not to do so. Under these circumstances there is no violation of the attorney’s procedural due process rights.

We therefore find there is no merit to the third assignment of error.

IV.

WAS THE 45-DAY SUSPENSION EXCESSIVE PUNISHMENT FOR THE MISSISSIPPI ATTORNEY’S MISCONDUCT?

It is conceded by the Bar that it has no standard as to what punishment for particular misconduct ought to be and that cases are considered on a case-by-case basis. That is as it should be and we seek to impose no standard here.

We held in Mississippi State Bar v. Phillips, 385 So.2d 943 (Miss.1980), that on appeal this Court reviews the evidence, the law, the findings and conclusions of the Complaint Tribunal, and then renders such order as the Court may find to be appropriate, based upon the entire record.

We find that the 45-day suspension is not appropriate based upon the entire record for the misconduct of which this Mississippi attorney is guilty. The punishment is totally disproportionate to the violation. We, therefore, vacate the 45-day suspension and order that the Mississippi attorney receive a private reprimand.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, and ROBERTSON, JJ., concur.

PRATHER, J., not participating.


text:
    Richard THETFORD v. CITY OF BILOXI and Civil Service Commission.
    No. 54998.
    Supreme Court of Mississippi.
    Aug. 1, 1984.
    Charles T. Sykes, Jr., Gulfport, for appellant.
    Michael B. McDermott, Page, Mannino & Peresich, Biloxi, for appellees.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.


text:
    Lorene Lane DOGAN v. STATE of Mississippi.
    No. 54997.
    Supreme Court of Mississippi.
    Aug. 8, 1984.
    Mitchell M. Lundy, Sr., Lundy & Lundy, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.


text:
    Raymond Edward HINES v. STATE of Mississippi.
    No. 54479.
    Supreme Court of Mississippi.
    Aug. 8, 1984.
    J. Elmo Lang, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

Before WALKER, P.J., and BOWLING and HAWKINS, JJ.

AFFIRMED.

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

PATTERSON, C.J., not participating.


text:
    INTERNATIONAL HARVESTER COMPANY v. Ralph ARCHER.
    No. 54331.
    Supreme Court of Mississippi.
    Aug. 8, 1984.
    Robert T. Gordon, Jr., Leonard C. Martin, Heidelberg, Woodliff & Franks, Jackson, for appellant.
    Duncan Lott, Langston & Lott, Boone-ville, for appellee.
   Appeal from Circuit' Court, Prentiss County; Fred Wicker, Judge.

Before BOWLING, HAWKINS and ROBERTSON, JJ.

REVERSED, RENDERED AND REMANDED.

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

PATTERSON, C.J., not participating.


text:
    Annelle WALKER v. Robert D. WALKER.
    No. 54987.
    Supreme Court of Mississippi.
    Aug. 8, 1984.
    Henry J. Cook, III, Cook, Tucker & Sharp, Bay St. Louis, for appellant.
    Joseph R. Meadows, Graves, Riley & Meadows, Gulfport, for appellee.
   Appeal from Chancery Court, Hancock County; John S. Morris, Chancellor.

Before WALKER, P.J., and BOWLING and HAWKINS, JJ.

REVERSED IN PART, RENDERED IN PART AND REMANDED.

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

PATTERSON, C.J., not participating.


text:
    Michael Joseph DeBUSSI v. STATE of Mississippi.
    No. 54303.
    Supreme Court of Mississippi.
    Aug. 8, 1984.

      Kellis Madison, Pearl, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the court:

Michael Joseph DeBussi was convicted of armed robbery and as an habitual criminal pursuant to Mississippi Code Annotated § 99-19-81 (Supp.1983), in the Circuit Court of the First Judicial District of Hinds County, Mississippi. He was sentenced to a term of forty-four (44) years without benefit of parole, probation, reduction or suspension of sentence. DeBussi appeals only the sentencing phase of his trial.

Upon the conclusion of the guilt phase of the trial in which the jury found DeBussi guilty but could not agree upon sentencing, the trial court, sitting without a jury, held a hearing to determine if DeBussi should be sentenced as a habitual criminal. It was stipulated that for sentencing purposes De-Bussi’s life expectancy was forty-five (45) years.

The only evidence produced by the state to show that DeBussi qualified for enhanced sentencing as a habitual offender consisted of two Inmate Identification Worksheets taken from a packet of records of the Arizona Department of Corrections which were verified as true and correct copies by the Correctional Records Administrator in a notarized cover letter. These exhibits were introduced by the assistant district attorney and not through any witness. Over objection, the Worksheets were admitted into evidence. DeBussi offered no evidence and he was then sentenced as an habitual offender under § 99-19-81 (Supp.1983), to a term of 44 years, not beyond his reasonable life expectancy but without the possibility of parole, probation, reduction or suspension of sentence.

WAS IT ERROR TO ADMIT THE ARIZONA INMATE IDENTIFICATION WORKSHEETS TO PROVE THE PRIOR FELONY CONVICTIONS IN THE HABITUAL OFFENDER SENTENCING HEARING?

Mississippi’s position on proof of prior convictions respects the substance of the best evidence rule: If the actual judgment of conviction is not introduced, it may only be proved by documents accorded equivalent evidentiary weight by statute.

We have regularly upheld sentences under the habitual criminal statutes where the proof of prior convictions was made by certified copies of the judgments of conviction. Baker v. State, 394 So.2d 1376 (Miss.1981); Jackson v. State, 418 So.2d 827 (Miss.1982); Crawley v. State, 423 So.2d 128 (Miss.1982). This accords with the basic principle that the best evidence of a conviction is the judgment of conviction. McGowan v. State, 269 So.2d 645 (Miss.1972); Brown v. State, 222 Miss. 863, 77 So.2d 694 (1955).

A summary of the court records certified by the trial judge has been admitted as proof of a prior conviction. In Lovelace v. State, 410 So.2d 876 (Miss.1982), the summary was in the form of an abstract of court records certified by the justice court judge as a true copy of his court records. This Court affirmed, 410 So.2d at 878, citing Vincent v. State, 200 Miss. 423, 27 So.2d 556 (1956), where evidence of a prior conviction was held to be competently shown by a copy of the docket entries covering the conviction, certified by the justice of the peace before whom the prior conviction was held. In both cases this Court relied on Mississippi Code Annotated § 13-1-77 (1972), authorizing a state custodian of public records to certify copies of his records to be received in evidence in all cases where the original would be evidence. These cases appear to treat a summary showing conviction the same as a judgment of conviction because they are certified by the trial judge who has custody of the original records.

The only other documentary evidence that this Court has sanctioned as a substitute for the judgment of conviction is the commitment paper issued by the circuit clerk of the court where the defendant was convicted. Pace v. State, 407 So.2d 530 (Miss.1981). In Pace, the Custodian of Records of Mississippi State Penitentiary took the stand and identified Pace’s original prison file. In addition to the original commitment papers for Pace’s prior convictions, photographs and summary sheets from the prison files were introduced in evidence.

Pace argued on appeal that the commitment papers were not the best evidence of conviction. This Court held that, because a commitment paper issued by the circuit clerk pursuant to Mississippi Code Annotated § 99-19-45 (1972) constitutes statutory authority to transfer a prisoner to the penitentiary and for the penitentiary to accept the prisoner, the statute effectively makes a commitment paper evidence of conviction.

Certainly, if a commitment paper is sufficient to authorize the penitentiary officials to receive and imprison the person named therein for service of the sentence shown, it is admissible in court as evidence of the conviction of such person without the necessity of introducing the judgment of conviction.

407 So.2d at 534.

There is no discussion in Pace on whether a prisoner summary sheet, standing alone, would likewise be competent evidence of a judgment of conviction. However, this Court has approved substitute documents to show convictions only when by statute they possess an authority equivalent to that of the original judgment of conviction.

The Arizona inmate worksheets lack the required authority to substitute for a judgment of conviction. In the cover letter, the Arizona Correctional Records Administrator stated that they were provided in accordance with ARS § 41-1604 B 2 (e) (Supp.1983). This section concerns administrative authority to transfer prisoners between penal institutions. The worksheets themselves lack any indication of authority on their face or certification that the information from court documents was correctly transcribed.

In no case before has this Court sanctioned proof of prior convictions by evidence so plainly secondary and unverified as these worksheets. Even where, as here, the prior convictions occurred out of state, the Mississippi cases show that certified copies of court records were offered as proof. See Jackson v. State, 381 So.2d 1040 (Miss.1980) (Alabama convictions); Baker v. State, 394 So.2d 1376 (Miss.1981) (Oklahoma convictions). Requiring the best evidence of prior convictions reduces the potential for error in the abbreviated setting of Mississippi’s habitual criminal sentencing hearing. See Seely v. State, 451 So.2d 213, 214 (1984).

We conclude that it was error to admit into evidence State’s Exhibit 4, pages 2 and 3, which constitute the only evidence offered by the state of DeBussi’s eligibility for enhanced sentencing as an habitual offender.

The issue then becomes whether the state has the right to a second chance at proving the status of DeBussi as opposed to his right not to be twice placed in jeopardy.

The Mississippi Double Jeopardy Clause, Mississippi Constitution § 22 (1890), was recently applied by this Court to a capital sentencing proceeding. Dycus v. State, 440 So.2d 246, 258 (Miss.1983). Our habitual offender sentencing procedure resembles in all relevant respects the sentencing phase of capital crimes. A separate trial is conducted on the sentencing issue. Cf. § 99-19-101 (Supp.1983) with Mississippi Uniform Criminal Rule 6.04(2). The state is required to prove the defendant guilty of additional facts which justify the sentence sought to be imposed. Cf. § 99-19-101 with §§ 99-19-81 to -83. The state’s burden of proof is beyond a reasonable doubt. Cf. Wheat v. State, 420 So.2d 229, 241 (Miss.1982), with Wilson v. State, 395 So.2d 957, 960 (Miss.1981). Finally, the statutes permit little or no sentencing discretion in either proceeding. The alternatives in a capital sentencing trial are death or life imprisonment, and the jury is guided by specific statutory standards as to which should apply. Under Mississippi’s habitual offender’s statutes, if the convictions be properly proven the trial court has not alternative but to impose the sentence prescribed in the statute. The habitual offender sentencing hearing, like the capital sentencing hearing, is itself a trial on eligibility for a harsher sentence, and therefore constitutes jeopardy. See Cooper v. State, 631 S.W.2d 508, 513-514 (Tex.Crim.App. 1982); People v. Quintana, 634 P.2d 413, 419 (Colo.1981); State v. Hennings, 100 Wash.2d 379, 670 P.2d 256, 260 (Wash. 1983).

As a general rule a distinction is made in double jeopardy cases between reversal for trial error and reversal on sufficiency of the evidence. As stated in Burks v. United States, 437 U.S. 1, 15-16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978), reversal for trial error

... is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, .... When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.
The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.

In Tapp v. State, 373 So.2d 1029, 1031 (Miss.1979), this Court followed Burks in holding that its reversal of defendant’s pri- or conviction in an earlier appeal (347 So.2d 974) was based on trial error and thus re-prosecution was not barred by the double jeopardy clause. In an appeal of Tapp’s habeas corpus petition the Fifth Circuit deferred to this ruling. Tapp v. Lucas, 658 F.2d 383 (5th Cir.1981).

A question left open by the companion case to Burks, Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed. 15 (1978), is whether double jeopardy would bar re-prosecution when there would be insufficient evidence to support conviction once the inadmissible evidence is discounted. Id. at 26, n. 9, 98 S.Ct. at 2155, n. 9.

This question was decided in the Fifth Circuit in United States v. Sarmiento-Per-ez, 667 F.2d 1239 (5th Cir.1982). The court held that reversal for trial error does not bar re-prosecution even where it found inadmissible the only evidence of essential elements of the crime. The court said,

Because we cannot know what evidence might have been offered if the evidence improperly admitted had been originally excluded by the trial judge, we have concluded that such situations do not present instances of evidentiary insufficiency.

Id. at 1240.

In this case, to exclude the worksheets does not merely leave out essential elements of the charge, as in Sarmiento-Perez, it eliminates the state’s case completely. Except for the inmate worksheets, the state offered no other evidence to prove its case.

The question thus is whether double jeopardy would prohibit resentencing where no evidence was offered to support the conviction apart from the inadmissible evidence.

Mississippi law requires the discharge of the defendant in cases where there is no evidence to support the conviction apart from the evidence erroneously admitted by the trial court.

In Barton v. State, 328 So.2d 353, 354 (Miss.1976), this Court held that a patrolman lacked probable cause to search the defendant’s automobile based on an unsubstantiated broadcaster’s dispatch and that the marijuana seized as a result of the invalid search was inadmissible. This Court ruled that a peremptory instruction should have been granted, reversed the conviction, and discharged the defendant. Id. at 355. As noted in the dissent, this Court refused to give the state a second opportunity to present the matter again to show the source of the information on which the radio broadcast was based.

In Canning v. State, 226 So.2d 747, 754 (Miss.1969), this Court held that there was no evidence connecting the defendant with marijuana found in a room she attempted to enter other than microscopic fibers found on her clothing seized after an unlawful arrest. Having excluded all the state’s evidence, the Court dismissed the case and discharged the defendant.

It follows from these cases that reversing DeBussi’s sentence for a trial error which excluded all of the evidence offered by the state would require that the habitual offender portion of his sentence (no parole or probation) be vacated. This is so even though, as in Barton, the state could possibly cure the trial error if it were given a second opportunity.

The essence of the double jeopardy prohibition is to limit the state to one fair opportunity to offer what proof it could assemble. The double jeopardy clause, as stated in Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652 (1982),

... prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction. Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction through sheer governmental perseverance.

The state has had one opportunity to prove DeBussi’s eligibility for an enhanced sentence. The proof was defective because of the state’s failure to comply with the best evidence rule. Thus the state has technically not had an opportunity to present the case to the judge free of error.

However, it is only in the most technical and formal sense that DeBussi would not be subjected to double jeopardy. The practical effect of remanding the case for a rehearing because of evidentiary error is to put DeBussi on trial a second time to face completely new evidence to prove the same charge.

We, therefore, hold that where there is no evidence to support a conviction apart from the evidence erroneously admitted by the trial court that the Mississippi Double Jeopardy Clause precludes the state from having a second chance to establish DeBus-si’s habitual offender status. Under these circumstances, DeBussi cannot be sentenced as an habitual offender under Mississippi Code Annotated § 99-19-81 (Supp. 1983).

How then may he be sentenced? Under our armed robbery statute, Mississippi Code Annotated § 97-3-79 (1972), he may not be sentenced to a term of less than three years. The law is settled that De-Bussi may be sentenced for a definite term reasonably expected to be less than life. Stewart v. State, 372 So.2d 257 (Miss.1979); Arrington v. State, 411 So.2d 779 (Miss.1982).

The forty-four (44) year sentence, once the impermissible enhancement is removed, is thus both statutorily and constitutionally permissible, and within the sound discretion of the judge.

We reverse the trial court on its finding that the appellant is an habitual criminal and further reverse his enhanced sentence which denied him the benefit of parole, probation, reduction or suspension of sentence. The sentence of forty-four years in the custody of the Department of Corrections is affirmed.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

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

PATTERSON, C.J., not participating.