author: COVINGTON, Judge. COVINGTON, Judge,

text:
    STATE of Louisiana v. Michael JOHNSON (Michael Anthony Johnson).
    No. 83 KA 0470.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Ossie Brown, Dist. Atty. by Joseph Lot-wick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Georgia Wilemon, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The defendant, Michael Johnson, was charged by Bill of Information with the crime of armed robbery in violation of LSA-R.S. 14:64, arising from an incident involving the robbery of Ivan Milieri, a convenience store attendant, at gun-point by Johnson and Alvin Williams on June 8, 1982. Johnson was convicted after a trial by jury of robbing Milieri while armed with a .410 single-shot shotgun. The trial judge sentenced the defendant to twenty-five years at hard labor with credit for time served. It is from this conviction and sentence that the defendant has appealed, assigning three errors as the basis of his appeal.

DENIAL OF REVIEW OF PRE-SEN-TENCE INVESTIGATION REPORT

In this assignment of error, the defendant contends that the trial court committed error when it refused the defense’s specific request to review the defendant’s pre-sentence investigation (P.S.I.) report. The defendant relies upon State v. Underwood, 353 So.2d 1013 (La.1977), and argues that because he was unable to review the P.S.I. report, he was unable to refute any false or invalid information contained therein. Underwood is clearly distinguishable in that the Underwood pre-sentence report was shown to be materially and preju-dicially false. Such is not the case here.

The case of State v. Berain, 360 So.2d 822 (La.1978), holds that there is no basis for allowing defense counsel access to the P.S.I. report unless he alleges that the report was “materially and prejudicially false.” There has been no such allegation made in the instant case. See State v. Boone, 364 So.2d 978 (La.1978), cert. den. 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979).

Also, although defense counsel told the court that the defendant did not recall one of the (many) previous illegal acts considered by the court prior to sentence, and the court told counsel to proceed to file the appropriate motion to traverse that portion of the P.S.I., and a contradictory hearing would be held, such a motion does not appear in the record.

Furthermore, the record does not show that any of the information relied on by the trial judge in sentencing the defendant was erroneous or false in any respect.

Therefore, we hold that it was within the sound discretion of the trial judge to refuse to disclose the pre-sentence information under the circumstances of this case.

This assignment lacks merit.

EXCESSIVE SENTENCE

The defendant further urges that the trial court erred in imposing an excessive sentence.

Article I, Section 20 of the Louisiana Constitution of 1974 provides that no law shall subject a person to “. . . cruel, excessive, or unusual punishment.”

Excessive punishment in Louisiana has been defined by Louisiana courts, as e.g., State v. Crook, 253 La. 961, 221 So.2d 473, 476 (1969), as that which is:

[b]arbarous[,] extraordinary, or grossly disproportionate to the offense. In short, the constitutional prohibition is directed to punishments that shock the conscience of civilized men.

In State v. Cox, 369 So.2d 118, 121 (La.1979), the Supreme Court enunciated its policy in reviewing sentences on the ground of excessiveness:

. .. [The Court] may vacate a sentence and remand for resentencing, when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record.

Moreover, the Court held in State v. Brown, 395 So.2d 1301 (La.1981), that a sentence must be grossly out of proportion to the crime before the appellate court will vacate and remand for re-sentencing. The trial judge has wide discretion in the imposition of sentence, given compliance with Article 894.1, and the sentence imposed will not be set aside in the absence of manifest abuse of discretion. State v. Feeback, 414 So.2d 1229 (La.1982).

The record reflects that the trial judge did not abuse his discretion in sentencing the defendant. He listed the factors which he considered in the sentencing.

... In pronouncing this sentence and in accordance with the provisions of Article 894.1 of the Louisiana Code of Criminal Procedure, the Court cites ... the defendant’s prior criminal record. As a juvenile the defendant was arrested on April 6, 1976, and charged with aggravated battery. On April 29, 1976, the defendant was counseled and warned by the Family Court Center. As an adult the defendant has at least twelve arrests which have resulted in several misdemeanor convictions including: misdemeanor theft, possession of marijuana on February 13, 1979, a March 19, 1980 arrest which resulted in conviction for driving while intoxicated, similarly on April 5, 1980 arrest for reckless operation, misdemeanor theft and [unauthorized use of a movable on February 23, 1981, again driving while intoxicated on November 30, 1981, unauthorized use of a movable on November 14,1982, and finally driving while intoxicated on June 7, 1982. .. . [A]nd the Court cites the defendant’s disregard for human life by creating the highly emotional atmosphere surrounding an armed robbery and his clear and convincing escalation of criminal activities beginning as a juvenile in 1976 as previously stated.

We hold that the trial judge was within his discretion in sentencing the defendant to twenty-five years imprisonment under the circumstances of this case. He properly used the criteria as set forth in Article 894.1 of the Louisiana Code of Criminal Procedure. Specifically, the trial judge referred to the defendant’s prior arrests, twelve since 1976. Due to the serious nature of the present offense, which endangered human life, a lesser sentence would tend to diminish the seriousness of the crime. The maximum sentence allowable by law for a conviction of armed robbery is ninety-nine years without benefit of probation, parole, or suspension of sentence. LSA-R.S. 14:64. The imposition of approximately one-fourth of the maximum sentence allowable is certainly not excessive under the circumstances.

The trial judge need not articulate every aggravating and mitigating circumstance recited in LSA-C.Cr.P. art. 894.1, provided the record reflects that the trial judge adequately considered these guidelines in particularizing the sentence to the defendant and to his conduct. State v. Trahan, 412 So.2d 1294 (La.1982). It is clear from the record of the instant case that the jury found the defendant guilty of robbery while armed with a loaded shotgun. The victim’s life was endangered. The trial judge was justified in taking these facts, the defendant’s prior criminal record and any mitigating circumstances into consideration in imposing sentence. Therefore, the sentence which was nearer the minimum side of the statutory range (showing that the mitigating factors were given due weight) than the maximum, was well within the discretion of the trial judge and not excessive when considering all of the factors involved.

The assignment of error is without merit.

PATENT ERROR

The defendant received a sentence on the armed robbery conviction of twenty-five years at hard labor. This sentence is illegal. A sentence for armed robbery must be served “without benefit of parole, probation or suspension of sentence.” LSA-R.S. 14:64(B). The trial court failed to include this required language in his sentence. The state has not sought review of the sentence. Such error is patent.

Sentencing errors patent on the face of the record may be recognized by appellate courts on their own' motion. LSA-C.Cr.P. art. 920.

The question of what action an appellate court is to take when there is a patent sentencing error adverse to the state, although review was not sought by the state, has been most recently considered by another panel of this Court in its opinion in “State of Louisiana v. Eli Jackson,” 349 So.2d 622 on the docket of this Court handed down this date. We are most impressed with the thoroughness of this scholarly opinion. For the reasons so cogently expressed in Jackson, we amend the sentence for armed robbery to provide that it shall be served without benefit of parole, probation or suspension of sentence. In all other respects, the conviction and sentence are affirmed.

CONVICTION AFFIRMED, SENTENCE AMENDED AND AFFIRMED.

COVINGTON, Judge,

specially concurring:

It would be barely worthwhile to belabor the point were it not for the per curiam statement of our Supreme Court in a recent writ application in “State of Louisiana versus Charles Napoli,” 437 So.2d 868, No. 83-K-0667, wherein the justices stated that to review a patent sentencing error favorable to a defendant would provide “a chilling effect on defendant’s exercise of his right to appeal.”

The authority cited for such a sweeping pronouncement is State v. Goodley, 398 So.2d 1068 (La.1981). Goodley is not supportive of any proposition referred to in Napoli. Goodley allows the appellate review of a patent error; and, in its review the Supreme Court discovers that the verdict finding the defendant guilty of manslaughter was by a ten to two vote of the petit jury. It reversed the conviction because it was considered invalid as not having been returned by a unanimous jury. The Goodley case has nothing whatever to do with sentencing error.

Certainly, no language used by the Court in Goodley would lead one to believe that the consideration of patent errors (no matter in whose favor) by an appellate court (intermediate or supreme) would be construed as having a “chilling effect” on a defendant’s exercise of his right to appeal. The increase in the number of appeals in criminal cases, although no statistics were referred to in Napoli, would not seem to suggest that defendants are being or will be deterred or discouraged from appealing their cases.

Moreover, the mere correction of the language of the sentence to conform to the dictates of the legislative branch, so that the sentence be on condition that it is without the benefit of parole, pardon or suspension can not be construed as “changing” or “increasing” the sentence. Since the law, as stated by the legislature, requires that the sentence be with such condition, the failure of the trial court to expressly use the language of the condition is without legal effect.

An illegal sentence is no sentence at all. Such a sentence, if allowed to stand, usurps the proper function of the legislature. That co-equal branch of government, attuned to the will of our people (who are demanding the restoration of respect for, and the protection of, property and personal rights) has enacted statutes proscribing certain conduct and prescribing penalties for the violation thereof. When, as in the case sub judice, the penalty is mandatory, judicial activism should not be employed, as in State v. Napoli, to invade, circumvent or render ineffective the province of the legislature. Unless the statute prescribing the sentence is unconstitutional as cruelly abusive, the courts have no authority to disregard or thwart its mandatory language. Our laws deserve greater respect — particularly from the judicial branch.

Lip service and platitudinous public pronouncements are inadequate to merit public confidence in our judicial system. Such solemn declarations should be buttressed and brought to fruition through correlative action in our courts. Otherwise, can we ingenuously contend that the skepticism which exists among many members of our profession as well as among lay persons is not warranted?

I submit that the pertinent portions of the dissenting opinions of Chief Justice Sanders and Justice Summers in State v. Speed reflect a more properly judicious judicial philosophy.

      . Assignment of error number 1 urged that the trial court committed error when it overruled the defense’s objection to a question asked by the prosecution of the defendant. This assignment was not briefed and is, therefore, considered abandoned. Rule 2-12.4, Uniform Rules of the Courts of Appeal.

      . See also the treatment of this issue by this panel in State v. Thomas, 349 So.2d 629, handed down this date.

      . I concur in the affirmance of the conviction. I am of the opinion, however, that the illegal sentence should be vacated and the case remanded to the trial court with instructions to the judge to impose the mandatory sentence required by statute....

      . Punishment for crimes is a matter for the legislature. Trial judges must obey legislative enactments on that subject. The trial judge, here unless the statute prescribing the punishment had been declared unconstitutional, should have imposed the prescribed penalty.

      . Justice Marcus also dissented in the 4-3 decision, State v. Speed, 335 So.2d 28 (La.1976).


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Donald Ray SMITH.
    No. 83 KA 0210.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Ossie Brown, Dist. Atty. by Glen Petersen, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Georgia Wilemon, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Donald Ray Smith, defendant, pled guilty to second degree battery and was sentenced to three years at hard labor. He appeals his sentence as excessive.

On March 15, 1982, ninety-one year old Lucinda Brown was brutally beaten in her home. As a result thereof, Ms. Brown sustained fractured facial bones and her eyes were swollen closed. Defendant, who lived in the victim’s home, was questioned in connection with the beating. Thereupon, he admitted becoming angry with Ms. Brown for feeding her cats food he brought into the house and, for that reason, striking her in the facial area and about the head.

Defendant was charged by bill of information with second degree battery in violation of La.R.S. 14:34.1. He pled guilty and was sentenced to three years at hard labor. On appeal, he contends his sentence is excessive in that the trial court failed to consider a mitigating factor when imposing sentence.

Defendant asserts that he has a mental problem resulting from a concussion suffered in a 1976 car accident. He contends that the trial court ignored this as a mitigating factor since neither this nor any other mitigating factor was mentioned when the trial court imposed sentence.

La.C.Cr.P. art. 894.1 sets forth sentencing guidelines for the trial court. It provides three general conditions under which the court should impose a prison sentence. Another eleven factors are listed as considerations in determining suspension of sentence or probation. Finally, the statute requires the trial court to state for the record the considerations and the factual basis for imposing the given sentence. However, the trial court need not articulate every aggravating and mitigating circumstance. State v. Trahan, 412 So.2d 1294 (La.1982). The record must reflect only that he adequately contemplated the guidelines given in the article. State v. Trahan, supra.

We find the trial court adequately complied with La.C.Cr.P. art. 894.1. We note that upon being notified by defense counsel of defendant’s medical history, the trial court stated that it had received all information appropriate to the sentence. Thereupon, it passed sentence on defendant, particularly noting La.C.Cr.P. art. 894.1. The trial judge stated that confinement was appropriate because there was an undue risk that the defendant would commit another crime during the period of suspended sentence or probation. He proceeded to recount the defendant’s previous criminal record which dated back to 1971 when the defendant was arrested in Massachusetts for assault and battery of a police officer. This was followed by a conviction in 1972 in Rhode Island for simple assault on a policeman and interfering with the police in the performance of their duties. Noting this was the defendant’s third instance of crimes against the person, the trial court pointed out that the defendant had previously had the benefit of two probationary periods— for the 1972 offense and a 1980 charge for simple drunk. The trial court stated that the defendant was in need of correctional treatment which could be most effectively provided by his commitment to an institution. Finally, the trial court explained that a lesser sentence would deprecate the seriousness of the defendant’s crime, citing that the victim herein was a ninety-one year old female who was completely helpless to defendant’s attack.

Specifically addressing whether defendant’s mental problems resulting from a 1976 concussion may have had a role in this offense, we note that the defendant’s previous record of crimes against the person pre-dates the concussion. Additionally, there is no evidence linking his mental condition with his commission of this crime.

The defendant was sentenced to three years at hard labor with credit for time served. Under La.R.S. 14:34.1 the maximum imprisonment period is five years.

The trial judge has wide discretion in the imposition of sentences within statutory limits. These sentences will not be set aside absent a manifest abuse of discretion. State v. Willis, 420 So.2d 962 (La.1982). However, even sentences within statutory limits may be considered excessive. State v. Trahan, supra. Such sentences, prohibited by Louisiana Constitution of 1974, Article I, Section 20, are those grossly out of proportion to the severity of the crime or nothing more than the purposeless and needless imposition of pain and suffering. State v. Willis, supra.

Under the circumstances of this crime, we find the sentence imposed to be neither grossly disproportionate nor a needless imposition of pain and suffering. On the contrary, we believe there is more than adequate justification for the sentence imposed. The sentence is affirmed.

AFFIRMED.

      . In another assignment of error, the defendant asserted that the trial court erred in denying his motion to suppress his confession. However, this assignment was not briefed and, therefore, is considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4.

      . R.S. 14:34.1. Second degree battery
      Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
      For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

        Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.

      . Id.


author: COVINGTON, Judge.

text:
    STATE of Louisiana v. Keith MORGAN.
    No. 83 KA 0231.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Ossie Brown, Dist. Atty. by Louis Daniel, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Bonnie Jackson, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Defendant, Keith Morgan, was charged by a bill of information with the crime of armed robbery, in violation of La.R.S. 14:64. Defendant initially pled not guilty; but during the trial, defendant withdrew his not guilty plea and entered a plea of guilty.

The trial judge accepted defendant’s guilty plea, and subsequently sentenced him to fifteen years at hard labor, without benefit of probation, parole or suspension of sentence.

Defendant appeals the sentence, his only assignment of error being that the trial judge imposed an excessive sentence.

The Louisiana Constitution of 1974, Article 1, Section 20 provides that no law shall subject a person to “... cruel, excessive, or unusual punishment.”

Excessive punishment in Louisiana has been defined by Louisiana courts, e.g., State v. Crook, 253 La. 961, 221 So.2d 473, 476 (1969), as that which is:

[b]arbarous[,] extraordinary, or grossly disproportionate to the offense. In short, the constitutional prohibition is directed to punishments that shock the conscience of civilized men.

Generally, a sentence is unconstitutional when it is nothing more than a purposeless and needless imposition of pain and suffering that is grossly out of proportion to the severity of the offense. In determining whether a sentence is grossly disproportionate to the severity of the crime, this Court must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the punishment is so disproportionate to the crime as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

A sentence imposed upon a defendant following a verdict or judgment of guilty may be within the statutory limits, yet violate the defendant’s right against excessive punishment under Article 1, Section 20 of the Louisiana Constitution of 1974, and hence is reviewable, according to our Supreme Court, by the appellate courts. State v. Sepulvado, 367 So.2d 762 (La.1979). The guidelines provided in LSA-C.Cr.P. art. 894.1 furnish the appropriate criteria by which to review whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives. State v. Walker, 414 So.2d 1245 (La.1982). Subsection B of LSA-C.Cr.P. art. 894.1 requires the sentencing court to consider any mitigating factors, including but not limited to those listed therein, as well as circumstances militating for incarceration. State v. Franks, 373 So.2d 1307 (La.1979). However, LSA-C.Cr.P. Article 894.1 does not require that the trial judge set forth all the factors listed therein to which he accorded weight. State v. Mathews, 428 So.2d 988 (La.App. 1st Cir.1983), writ denied 434 So.2d 418 (La.App. 1st Cir.1983). All that is necessary is an adequate basis for review showing that all relevant factors have been considered. State v. Easley, 432 So.2d 910 (La.App. 1st Cir.1983). The trial judge has great discretion in imposing a sentence within statutory limits and will not be overturned absent abuse of that discretion. Id.

The record before us on appeal contains the transcription of defendant’s sentencing hearing and reveals that the trial judge gave consideration to the factors which militate for confinement and those which mitigate against confinement, concluding: “I see no grounds whatsoever tending to excuse or justify his conduct.” Further, the trial judge gave every opportunity to defendant and his counsel to make a statement in defendant’s favor for consideration by the judge.

In imposing sentence upon defendant the trial judge states that he had duly considered the Pre-Sentence Investigation Report and felt that the imposition of a lesser sentence would depreciate or “deprecate” the seriousness of the crime. The trial court noted that defendant had earlier been convicted of carrying a concealed weapon and that, at the time of the commission of the instant crime, defendant had a loaded 38 caliber automatic pistol. Testimony revealed that the defendant was twenty-one years of age at the time of the commission of the crime. Although he has two children, he and his wife had been separated for 2 years and at the time of trial he had not contributed to their support in some time. The judge stated that he felt the incarceration of the defendant would not work a greater hardship on his family than had been endured by them in the past few years. We find that the trial court has adequately contemplated the statutory guidelines for sentencing and adequately complied with the requirements of LSA-C.Cr.P. art. 894.1.

In light of the relevant factors entered into the record, we cannot say that the judge abused his discretion in imposing a sentence on the defendant of fifteen years at hard labor without the benefit of probation, parole or suspension of sentence. State v. Feeback, 414 So.2d 1229 (La.1982).

We find the assignment of error has no merit. The sentence imposed is affirmed.

AFFIRMED.


author: COLE, Judge.

text:
    STATE of Louisiana v. Rex Bell WILLIAMS, Jr.
    No. 83 KA 0262.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Ossie Brown, Dist. Atty. by Premila Chumbley, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Ernest Smithling, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The only issue before us is the excessiveness of the sentence imposed upon defendant as a result of his guilty plea to one count of armed robbery. The charges arose from an incident occurring on April 25, 1982, when defendant Rex Bell Williams, Jr., approached two men in the parking lot of Lee Motors in Baton Rouge and asked them for a ride home. The men agreed and after traveling a short distance defendant pulled out a small pistol and ordered the two men to get out of the car and run. Defendant then departed in the automobile and was later apprehended in Tangipahoa parish. He was returned to East Baton Rouge parish, and charged by bill of information with armed robbery, i.e., violation of La.R.S. 14:64. Defendant pled guilty to the charge, and after a “Boykin” hearing, the court imposed a sentence of nine years at hard labor, without benefit of probation, parole or suspension of sentence.

Defendant argues on appeal the sentence imposed is excessive. As a part of that assignment of error he contends the court did not properly consider the mitigating factors under La.Code Crim.P. art. 894.1 which are applicable to him. Ironically, appellant does not enumerate any such mitigating factors which should have been considered. The court had informed the defendant, at the time he made his plea, the maximum sentence imposed would be nine years. The actual sentence was to be dependent upon the presentencing report. Defendant and his counsel were in total agreement with this “bargain.” When the sentence was actually imposed the court stated due to the defendant’s lengthy juvenile and adult criminal record, a lesser sentence would not be appropriate. At this point the court gratuitously offered to allow the defendant to withdraw his guilty plea and plead not guilty. He declined to do so.

There was a factual basis for the imposition of this sentence. The nine year sentence is not severe in light of the defendant’s past record and in light of the fact the crime of armed robbery is punishable by a maximum of 99 years. See State v. Williams, 420 So.2d 1116 (La.1982).

This appeal, like so many others of like nature, makes a mockery of our criminal justice system. There is a crying need for constitutional and statutory reform of the rules applicable to appellate review of sentencing. The new legislation should make it crystal clear if the sentence does not exceed the maximum penalty prescribed by the Legislature, and that penalty has not been struck down as constitutionally excessive, the appellate courts are precluded from reviewing the sentencing discretion vested in the trial court.

The judgment of the trial court is affirmed. Costs are to be paid by appellant.

AFFIRMED.

SAVOIE, J., concurs in the result.


author: CARTER, Judge:

text:
    STATE of Louisiana v. Carlos R. SWANSON.
    No. 83 KA 0290.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Vincent Wilkins, Baton Rouge, for defendant and appellant, Carlos R. Swanson.
    T. Barry Wilkinson, Asst. Dist. Atty., Port Allen, for appellee, State of La.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Defendant, Carlos R. Swanson, was charged by bill of information with simple burglary in violation of LSA-R.S. 14:62. One of the issues on appeal is whether pursuant to a plea bargain, defendant knowingly and intelligently waived his rights and freely and voluntarily entered a plea of guilty pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The second assignment of error addresses excessiveness of sentence.

The trial judge determined that defendant had entered a plea of guilty to the charge of simple burglary and subsequently sentenced defendant to confinement with the Louisiana Department of Corrections for a period of nine (9) years, with the recommendation that he go to DeQuincy or, in the alternative, to the Hunt Correctional Institute.

Voluntariness of Guilty Plea

From the colloquy between the court and defendant, attached hereto as Appendix A, it is obvious that although the defendant admitted certain criminal activity, he did not enter a plea of guilty. A guilty plea is more than a confession which admits that the accused did various acts; it is itself a conviction leaving nothing remaining but to give judgment and determine punishment. The plea of guilty must be clear from the record. Boykin v. Alabama, supra.

The transcript of the testimony during the Boykin examination reflects the trial judge’s question: “Are you pleading guilty to the crime of simple burglary which carries with it a penalty of twelve years?”, and the defendant’s answer of “No sir”. The next question is “You are guilty; or are you doing it for some other reason?” and the answer thereto, “No sir.”

A review of the entire colloquy contains no clarification or explanation as to defendant’s denial that he was entering a guilty plea at that time. Therefore, it was error on the part of the trial judge to consider petitioner’s statement as a guilty plea where it is evident from the record that defendant either was not pleading guilty or did not knowingly and voluntarily enter a plea of guilty. Clearly, a plea under these circumstances is constitutionally infirm under the standards set forth in Boykin, supra.

Exeessiveness of Sentence

Defendant contends that the trial court erred when it imposed an excessive sentence of nine (9) years. Because this court has vacated defendant’s conviction and sentence, it is not necessary to consider the excessiveness of defendant’s sentence at this time.

The conviction and sentence of defendant are vacated, and the case is remanded to the trial court to reinstate the plea of not guilty and proceed in accordance with law.

REVERSED AND REMANDED.

“APPENDIX A”

STATE OF LOUISIANA : EIGHTEENTH JUDICIAL DISTRICT COURT

VS. : PARISH OF WEST BATON ROUGE

CARLOS R. SWANSON : STATE OF LOUISIANA

NO. 98,756

Transcript of proceeding had in this matter on August 3, 1982 at the Parish Courthouse in Port Allen, West Baton Rouge Parish, Louisiana.

HONORABLE EDWARD N. ENGOLIO

JUDGE PRESIDING

APPEARANCES:

T. BARRY WILKINSON, ESQUIRE :

Assistant District Attorney :

18th Judicial District Court :

Port Allen, Louisiana : For the State of Louisiana

John M. Bemiss, Jr., :

Asst. Indigent Defender :

Port Allen : For the Defendant

Reported by:

Edith T. Dugas

Deputy Clerk of Court and

Court Reporter

Parish of West Baton Rouge

Port Allen, Louisiana

Tuesday, August 3, 1982

MR. WILKINSON: Your Honor, the first matter before the Court is State of Louisiana versus Carlos R. Swanson, charge of burglary. He heretofore plead not guilty and it’s my understanding he wishes to tender a plea of guilty at this time.

Is that right, Mr. Swanson?

DEFENDANT: Yes, sir.

BY THE COURT:

Q What is your name?

A Carlos R. Swanson.

Q Where do you live?

A Highway 190, in Port Allen.

Q How old are you?

A Eighteen.

Q When were you born?

A 1963.

Q What date?

A August 20.

Q Where did you go to school?

A I went to school at Dufroq Elementary School in Baton Rouge.

Q Did you go to high school?

A Yes, in Massachusetts.

Q What grade did you go to?

A Tenth.

Q You’ve been charged with Simple Burglary, which is the unauthorized entering of any dwelling, vehicle, watercraft or other structure, movable or immovable, with the intent to commit a felony or any theft. Whoever commits the crime of Simple Burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years or both. That is the crime that you’re charged with.

THE COURT: Now whose building did he go into?

MR. WILKINSON: The State National Life Insurance Company, one of the insurance companies here, the office building, Your Honor. State National Life Insurance Company in the City of Port Allen.

THE COURT: What did he take?

MR. WILKINSON: He took some checks and other items, but most important was the checks.

THE COURT: Did you recover the checks?

MR. WILKINSON: I think so, Your Honor. Did we recover all of them?

DEFENDANT: Yes.

BY THE COURT:

Q You have a right to be tried by a judge or by jury and at that trial you would have a right to a lawyer, if you couldn’t afford one, one would be appointed for you. If you lost the case he would be obligated to take an appeal for you even though the grounds for the appeal would not be sound. You are presumed to be innocent until proved guilty beyond a reasonable doubt; and the burden of proof is on the State to have to confront you with the witnesses competing against you. You would have a right to cross-examine these witnesses through your counsel. You would be able to summon witnesses in your behalf through compulsory process and you would not have to incriminate yourself and this could not be held against you. You wouldn’t have to take the witness stand and no one in the courtroom could even comment on that. When you appear here to offer a plea to this Court, you waive all these rights. Do you understand that; except the right to attack the judge’s conversation with you now with a writ of Habeas Corpus. Do you understand that?

A Yes, sir.

Q Do you appear here freely, willingly and voluntarily, or have you been forced to come up here and offer a plea of guilty?

A Freely, sir.

Q Are you pleading guilty to the crime of Simple Burglary which carries with it a penalty of twelve years—

A No, sir.

Q You are guilty; or are you doing it for some other reason?

A No, sir.

Q Did you go into the State National Life Insurance building and take some checks?

A Yes, sir.

Q You understand that although your attorney and the State have entered into a plea bargain, the Court is not obligated to accept that bargain. Do you understand that?

A Yes, sir.

THE COURT: What is the recommendation?

MR. BEMISS: Actually, Your Honor, we’re asking for a presentence investigation in this matter.

MR. WILKINSON: We understand he might possibly have a prior offense in Massachusetts, Your Honor and it just depends on — I think that would have an effect on the number of years I might recommend.

THE COURT: The Court orders that the plea be typed and a presentenee investigation will be conducted in this case. The Court makes no promises to you whatsoever. Do you understand that?

DEFENDANT: Yes, sir.

MR. WILKINSON: Thank you, Your Honor.

MR. BEMISS: Thank you, Judge.

THE COURT: Be back here on the 28th of September for sentencing.

STATE OF LOUISIANA

PARISH OF WEST BATON ROUGE

I, Edith T. Dugas, Deputy Clerk of Court and Court Reporter in and for the Parish of West Baton Rouge, do hereby certify that the foregoing is a true and correct transcript of the proceeding had in this matter on the 3rd day of August, 1982 at the Parish Courthouse in Port Allen, West Baton Rouge Parish, Louisiana, as taken by me in shorthand notes complemented with magnetic tape recording and then reduced to typewriting by me.

I further certify that I am not an attorney or counsel for any of the parties; that I am not related or employed by any attorney or counsel connected with this action; and that I have no financial interest in the outcome of this action.

Port Allen, Louisiana this 5th day of August, 1982.

/s/ Edith T. Dugas

EDITH T. DUGAS

Deputy Clerk of Court and Court Reporter

Parish of West Baton Rouge Port Allen, Louisiana


text:
    STATE of Louisiana v. Danny O. MYLES.
    No. 83 KA 0305.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Peter J. Garcia, Asst. Dist. Atty., and J. Kevin McNary, Asst. Dist. Atty., Covington, for appellee.
    George C. Ehmig, Gretna, for appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Danny O. Myles, was indicted by a grand jury under L.S.A.-R.S. 14:30.1 for second degree murder. He pled not guilty and not guilty by reason of insanity. A lunacy hearing was held. Defendant was found sane and able to stand trial. Thereafter, defendant was tried by a jury, found guilty as charged, and sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. He appeals his conviction. We affirm.

On December 30, 1981, defendant, a construction laborer, went to his jobsite at North Lake Shopping Center in Mandeville, Louisiana. When he entered the jobsite, he was carrying an almost empty bottle of wine. Therein he encountered Mr. George Stiles, a foreman, who abrasively reprimanded the defendant for entering the construction site with a bottle of wine. A verbal confrontation ensued with the defendant refusing to either leave the jobsite or dispose of the bottle of wine. Mr. Stiles then called upon a second foreman who, in a more courteous manner, told defendant that alcoholic beverages were not allowed on the premises. Defendant then left the jobsite.

Approximately two and one-half hours later, the defendant returned to the jobsite and encountered a friend and co-worker, Mr. Whitaker. Mr. Whitaker saw defendant was carrying two handguns and believed defendant intended to harm Mr. Stiles. Defendant then spotted Mr. Stiles standing with several other employees. He walked directly up to Mr. Stiles, cursed him, attempted to strike him, then drew a .38 caliber pistol and shot Mr. Stiles six times, killing him instantly.

After the shooting, the defendant casually left the scene until he met the project supervisor, Mr. Walton LeBlanc. After advising Mr. LeBlanc that he had just shot a man, the defendant continued his leisurely departure from the jobsite. Approximately 10 minutes later, he was arrested. At the time of arrest, he had on his person the emptied 6-shot .38 caliber revolver used in the shooting, as well as a cocked .25 caliber pistol, with one live shell in its chamber.

Subsequently, the defendant was tried by a jury and found guilty of second degree murder. From this conviction, defendant appeals.

Defendant claims the trial court erred in: (1) admitting into evidence a photograph of the decedent; (2) denying defendant’s motion for a new trial when the evidence was insufficient to find the required specific intent to convict; and (3) denying defendant’s motion for judgment of acquittal or, in the alternative, for modification of the verdict where the evidence was insufficient to find the necessary specific intent to convict.

ASSIGNMENT OF ERROR NO. 1

Defendant argues that the trial court erred in admitting into evidence a photograph of the decedent. Defendant’s complaints as to the admissibility of photographs of the victim are waived by permitting their introduction without objection at trial. L.S.A.-C.Cr.P. 841; State v. Hoffpauir, 355 So.2d 929 (La.1978).

Here, decedent’s photograph marked S-2, to which defendant had objected, was removed from the evidence and another photograph marked S-7 was entered without objection. In fact, after the court allowed the substitution, defense counsel stated, “I would have no objection to their introduction, Your Honor.”

Accordingly, this assignment of error has no merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Under Assignments of Error Nos. 2 and 3, defendant alleges his intoxication at the time of the offense precluded his ability to formulate the specific intent required to find him guilty of second degree murder. His defense is based on L.S.A.-R.S. 14:15 which reads, in pertinent part, as follows:

“The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows:
* * * * * *
“(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of specific knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.”

Voluntary intoxication does not excuse the defendant of the crime, but it can be a defense to a crime which requires specific intent or special knowledge if the intoxication precluded the capacity to form that intent. State v. Burge, 362 So.2d 1371 (La.1978). Specific intent is that state of mind in which “the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” L.S.A.-R.S. 14:10(1).

Here, the trial court found that the defendant actively desired the prescribed criminal consequences to follow his actions. According to Mr. Whitaker, a co-worker of defendant, the defendant returned to the jobsite to harm Mr. Stiles. The record shows that the defendant was armed and seeking Mr. Stiles prior to locating him. Further, it shows the defendant observed Mr. Stiles standing with a group of workers and walked directly toward him, subsequently attempting to strike Mr. Stiles. When this failed, the defendant shot Mr. Stiles 6 times. Then he turned and walked casually away from the scene.

The only witness to testify concerning the amount of alcohol consumed by the defendant was Mr. Raymond Winston, defendant’s friend. Winston stated that between defendant’s initial visit to the jobsite and his return about 2½ to 3 hours later, the defendant consumed some wine, a quart of beer, ½ quart of vodka and some scotch. Winston further stated that the defendant was disoriented, staggering and unable to stand up.

Contrarily, the state introduced the testimony of seven different witnesses, all of whom observed the defendant either immediately prior to, during or immediately after the killing of Mr. Stiles. Each of these witnesses testified that the defendant spoke clearly and appeared neither drunk nor disoriented. Further, they testified that defendant gave no impression of being totally under the influence of alcohol.

Our standard of review has been set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and recently affirmed in State v. Graham, 422 So.2d 123 (La.1982) to be: Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved every essential element of the crime beyond a reasonable doubt.

We find that a rational trier of fact could conclude beyond a reasonable doubt that the defendant actively desired the prescribed criminal consequences to follow his actions. Thus, he had the requisite specific intent for the offense committed.

For the above and foregoing reasons, defendant’s conviction is affirmed.

AFFIRMED.

      . L.S.A.-R.S. 14:30.1 states:
      “Second degree murder is the killing of a human being:
      “1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      “2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
      “Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”


author: LOTTINGER, Judge.

text:
    Sam PERKINS and Kenneth Meyers v. B & W CONTRACTORS, INC.
    No. 83 CA 0386.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Denied Dec. 16, 1983.

      Paul T. Thompson, Thompson & Beasley, Baker, for plaintiffs-appellants.
    A.J. Lord, Zachary, for defendant-appel-lee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This is a suit for a declaratory judgment, seeking the recognition of amendments to certain proposed building restrictions of Meadowood Hills Subdivision, located in the town of Slaughter, Parish of East Feliciana, Louisiana. From a judgment declaring the amendments valid, Sam Perkins and Kenneth Meyers, erroneously listed in the caption of this suit as plaintiffs, but in fact defendants in the declaratory judgment suit, suspensively appeal.

In this court this appeal has been consolidated with appeal No. 82 CA 0649, 349 So.2d 656 (La.App.1983). The general facts relating to both suits will be discussed in this opinion, however, separate judgments will be rendered.

FACTS

In June of 1957, certain acreage in East Feliciana Parish was subdivided into the Meadowood Hills Subdivision. The first plat of this subdivision containing 129 lots was filed on September 12, 1957, under entry No. 10832. The second and final plat containing 128 lots was filed on November 24, 1958, under entry No. 16662. On September 12, 1957, under entry No. 10831, a document entitled “Meadowood Hills Subdivision Restrictions” was filed. Both plats on their face state that “all lots are subject to ‘declaration of protective covenants’ recorded simultaneous herewith.” The “restrictions” provide that they shall be binding for a period of 25 years and shall automatically extend for successive 10 year periods “unless an instrument signed by a majority of the owners of the lots has been recorded, agreeing to change said covenants in whole or part.” The restrictions were recorded on September 25, 1957.

On June 4, 1981, Sam Perkins and Kenneth Meyers, property owners in Meado-wood Hills Subdivision, filed suit seeking a permanent injunction to enjoin B & W Contractors, Inc. from constructing or continuing to construct duplex or multi-family residential dwelling units in violation of the subdivision restrictions. Trial was held and judgment rendered declaring the restrictions valid, holding the construction was in violation of the restrictions, and ordering the defendant, B & W Contractors, Inc., not to violate the restrictions and to remove any violations that had been thus far constructed. Judgment was signed on April 14,1982. Motion for a new trial was denied on May 27,1982. A suspensive appeal order with bond was filed on July 6, 1982, resulting in appeal No. 82 CA 0649, - So.2d -. An appeal bond was not filed timely, thus, the appeal is not suspensive but devol-utive.

Pending appeal in the injunction suit, the original defendant, B & W Contractors, Inc., filed a “Petition for Declaratory Judgment” on September 24, 1982, naming Sam Perkins and Kenneth Meyers, the original plaintiffs, as defendants, and seeking an adjudication that the subdivision restrictions had been validly amended, which would allow the construction which the original suit sought to enjoin. A hearing was held on November 4, 1982, wherein the trial court ruled that the amendments to the subdivision restrictions were valid and in full force and effect. After a denial of a new trial, Perkins and Meyers appealed sus-pensively, No. 83 CA 0386.

MOOTNESS OF APPEAL IN NO. 82 CA 0649

B & W Construction, Inc., appellants in No. 82 CA 0649, 349 So.2d 656, and appel-lees in No. 83 CA 0386, contends that if the declaratory judgment decision is affirmed, then the original appeal in No. 82 CA 0649, 349 So.2d 656, is moot. We agree. If having validly amended the subdivision restrictions to authorize and allow construction and/or activities which were violative of the restrictions prior to the amendments, the property owners acted not only prospectively but retoractively by forgiving and ratifying any existing violations. Thus we proceed to the merits in the declaratory judgment case, No. 83 CA 0386.

ASSIGNMENTS OF ERROR

Sam Perkins and Kenneth Meyers as appellants herein contend that the trial court erred:

1. in holding that the signature of an owner spouse (where both spouses’ names appeared in the act of acquisition) was not needed in an act to amend subdivision restrictions;
2. in finding that the restrictions were recorded on September 12, 1957, instead of September 25,1957, as shown on the face of a certified copy of the restrictions;
3. in holding that the language “a majority of the owners of the lots” meant the owners of a majority of the lots for purposes of amending the restrictions;
4. in finding that the filing of the amendments to the restrictions the day before the expiration date of the original restrictions timely even though the amendment stated it was to become effective 14 days later; and
5. in finding that revocation of signatures to the amendment was untimely-

ERROR NO. 2

Without question, the original document purporting to be subdivision restrictions was filed with the clerk of court of East Feliciana Parish on September 12, 1957. There is also an indication that these restrictions were recorded on September 25, 1957. The significance of the date of recor-dation is that the restrictions provide that they were to be in existence for an initial period of 25 years from the date of recordation. The termination date of the restrictions is also important, inasmuch as amendments were filed on September 11, 1982, and documents revoking certain signatures appearing on the amendments were filed on September 24, 1982.

Suffice it to say, the terms “filed” and “recorded” when used in the context of conveyance and/or mortgage records in this state are interchangeable and synonymous. We are of the opinion that the September 25, 1957, recordation notation is nothing more than the date when a copy of the original was made by the clerk of court for general public view. However, the important date is the date that the restrictions were filed (or in other words recorded) with the clerk of court’s office, and that date was September 12, 1957. Therefore, 25 years later would be September 12, 1982.

ERROR NO. 3

The restrictions provide that after the original 25 year period the restrictions shall automatically be extended for successive 10 year periods unless “a majority of the owners of the lots” agree to change the restrictions. Appellants argue that the trial judge misinterpreted this provision when he allowed the owners of a majority of the lots to control rather than a majority of all owners in the subdivision. They argue that if one person owned a majority of the lots that person could control whether the restrictions would be amended.

We believe the argument is misplaced. The ownership of a majority of the property governed by the restrictions should be able to amend the restrictions when it is appropriate to do so. Under appellant’s theory, if one or two lots were owned by 200 people in indivisión, then these owners, being a majority number wise but not so property wise, would control.

The trial judge was correct in his interpretation of the provision that the owners of a majority of the lots control.

ERROR NO. 1

In this assignment of error appellants argue that “building restrictions are incorporeal immovables and real rights likened to predial servitudes,” La.Civ.Code art. 777, and that the release of such a servitude is an alienation to which all owners must consent, citing Bruce v. Simonson Investments, Inc., 251 La. 893, 207 So.2d 360 (1968). Thus, if both husband and wife appeared as purchasers, then both must sign the consent to amend these restrictions. Additionally, it is argued that where a partnership owns property, all the partners must sign. Lots 1 and 2 of Meadowood Hills was purchased by G. Wayne Cavin, with 75% ownership, and Edward A. and Sandra Oman Shaneyfelt, husband and wife, with a 25% ownership. Lots 3, 4, 5 and 6 were purchased by G. Wayne Cavin with 75% ownership and Edward A. Shaneyfelt with 25% ownership. Only Wayne Cavin and Edward Shaneyfelt signed the amendments.

These six lots were purchased by individuals in indivisión. There is no evidence in the record that a partnership existed, between Cavin and Shaneyfelt. Thus the partnership argument is without merit.

Since the lots were purchased during the marriage of the Shaneyfelts, it was community property. “Each spouse acting alone may manage| control or dispose of community property unless otherwise provided by law.” La.Civ.Code art. 2346. The concurrence of both spouses is required for alienation, incumberance or lease of community movables and immovables, La.Civ. Code art. 2347, provided however, that the lack of concurrence creates only a relative nullity. La.Civ.Code art. 2353. Assuming for the sake of argument that the signing of the amendments falls within the purview of Art. 2347, inasmuch as Mrs. Shaneyfelt has not objected to the voting of her interest in these lots in favor of the amendments, we find no merit in assignment of error No. 1.

ERROR NO. 4

By this assignment of error, the appellants argue that if this court holds that the original restrictions terminated on September 12, 1982, the 25th anniversary of their filing, then, because the amendments provide they are not effective until September 25, 1982, the original restrictions automatically renewed for another 10 year period on September 12, 1982.

Confusion apparently exists because the original restrictions were filed on September 12,1957, and were noted as recorded on September 25, 1957. We have previously discussed that there is no difference in terminology between “filed” and “recorded.” The trial judge apparently concluded that the reference in the amendments to an effective date of September 25 was an error caused by confusion and was of no effect. This conclusion was bolstered by the fact that the amendments were filed on September 11, 1982. We agree, holding that the amendments were timely and effective as of September 12,1982, the termination date of the restrictions.

ERROR NO. 5

In this last assignment of error, appellants argue that certain individuals revoked their signatures of assent to the amendments, which revocation was filed on September 24, 1982. However, all signatures of revocation are dated after the filing and effective date of the amendments, and thus cannot affect the validity of the amendments.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Sam PERKINS and Kenneth Meyers v. B & W CONTRACTORS, INC.
    No. 82 CA 0649.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Thomas J. Frierson, Paul T. Thompson, Byford L. Beasley, Thompson & Beasley, Baker, for plaintiffs-appellees.
    A.J. Lord, Bankston & Lord, Zachary, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This appeal was consolidated with No. 83 CA 0386, 439 So.2d 652 (La.App.1983). In this proceeding the trial court found that restrictions to Meadowood Hills Subdivision were valid, had not been abandoned because of violations, had not been amended, but had been and were being violated by the defendant-appellant herein, B & W Contractors, Inc., and enjoined further violation and ordered the removal of any violations that had thus far been constructed. However, because of our decision in 83 CA 0386, 439 So.2d 652, this day rendered, we dismiss this appeal as moot at appellant’s costs.

APPEAL DISMISSED.


author: ALFORD, Judge.

text:
    Johnny GUILLORY v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, DIVISION OF MAINTENANCE AND FIELD OPERATION.
    No. 83 CA 0528.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Granted Dec. 9, 1983.
    Patrick W. Pendley, Plaquemine, for appellant.
    A.J. Bonfanti, Dept, of Transp. and Development, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of Civil Service, Baton Rouge, for Herbert L. Sumrall Director, Dept, of State Civil Service.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Appellee, the Louisiana Department of Transportation and Development, moved to dismiss this appeal from a decision of the State Civil Service Commission by appellant, Johnny Guillory, on the ground that it was not timely. This Court issued a show cause order which brings this matter before us today.

La. Const. (1974), Art. 10, Section 12(A) provides that the decision of a State Civil Service Commission referee is subject to review by the Commission if an application for review is filed within fifteen calendar days after the decision is rendered. If no such application is timely filed, the decision of the referee becomes the final decision of the Commission as of the date the decision was rendered by the referee. Additionally, once the decision of the referee becomes the final decision of the Commission, it is subject to review upon appeal to the Court of Appeal wherein the Commission is located. In order for this appeal to be timely however, an application must be filed with the Commission within thirty calendar days after its decision becomes final.

The decision of the referee in this case was filed on December 17, 1982, and since no application for review by the Commission was filed within the fifteen day delay period, this also became the date of the final decision of the Commission. Appellant therefore had thirty calendar days thereafter, or until January 16, 1983, to perfect an appeal. The application for appeal was received in the office of the State Civil Service Commission and stamped “filed” on January 17, 1983. It is appellant’s contention that the application was mailed on January 13, 1983, and placed in the Commission’s post office box on January 15, 1983.

The thirtieth calendar day following the commission’s final decision was January 16, 1983, which fell on a Sunday. Sunday is a legal holiday. LSA R.S. 1:55(A)(1). However, it is clear that the term “calendar days” does not allow extra days for filing of an appeal when the last date falls on a legal holiday. Duhe v. Department of Revenue and Taxation, 432 So.2d 280 (La.App. 1st Cir.1983); Johnson v. Louisiana State University, 431 So.2d 447 (La.App. 1st Cir.1983); Thomas v. Department of Corrections, 430 So.2d 1153 (La.App. 1st Cir.1983). The mailing of an application for appeal does not constitute filing of it since the term “filed with the commission” requires actual receipt by the Commission. Johnson v. Louisiana State University, supra; Thomas v. Department of Corrections, supra.

Appellant argues that this application was received by or placed into the custody of the Commission when it was placed in the post office box leased by the Commission. First, even if this argument were accepted, there is no proof herein of the date on which this occurred. Second, it is clear that the term “filed” contemplates placing an item into the custody of a proper officer and not merely depositing it at a physical location. See Reilly-Benton Company, Inc. v. Liberty Mutual Insurance Company, 278 So.2d 24, 28 (La.1973); Lambert v. Kelley, 270 So.2d 532, 534-535 (La.1972).

In the instant case, appellant’s application for appeal was not actually received and filed by the proper officers in the Commission’s office until January 17, 1983, which was not within the allowable time period.

In the alternative, appellant argues against dismissal of this appeal on the ground that the requirement that an application for appeal be filed within thirty calendar days, when interpreted as including legal holidays even when the last day falls on one, denies his right to due process. He argues that the Constitution and jurisprudence guarantee him thirty calendar days upon which to file his application for appeal.

Essential to due process are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. Sutton v. Department of Public Safety, Division of State Police, 340 So.2d 1092 (La.App. 1st Cir.1976). In the present case, appellant received due notice of the Commission’s decision. He thereafter had ample opportunity to avail himself within a clearly proscribed time period of the opportunity to have this matter heard on appeal, pursuant to the same appellate procedure provided for all members of the classified civil service. Additionally, a careful reading of La. Const. (1974), Art. 10, Section 12(A), makes it clear that this provision does not guarantee a certain number of days on which the Commission is open to receive appeal applications, but rather, merely requires that an appeal be filed within a certain period. Accordingly, it is clear that appellant has not been denied due process of law.

An argument very similar to that made by appellant was addressed by this Court in Sutton v. Department of Public Safety, Division of State Police, supra, although in a slightly different context. The appellant in Sutton attacked the constitutionality of Civil Service Rule 13.2, which provides in pertinent part, that legal holidays shall not serve to extend the specified delay for appeals to the Commission. The Court found the appellant’s argument to be without merit and upheld the constitutionality of this rule. Although involving a somewhat different situation than the present ease, the holding in Sutton lends support, by analogy, to our position herein.

Accordingly, the motion to dismiss the appeal of appellant, Johnny Guillory, is hereby granted, with all costs to be borne by him.

MOTION GRANTED.


author: EDWARDS, Judge.

text:
    Nathan W. POOLE v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 83-CA-0807.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Patrick L. Durusau, Jena, for appellant.
    Anthony J. Bonfanti, Staff Atty., Dept, of Transp. & Development, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Dept, of State Civil Service, Baton Rouge, for Herbert L. Sum-rail.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Appellee, Department of Transportation and Development, filed a motion to dismiss this appeal by appellant, Nathan W. Poole, on the grounds that the appeal of a final decision of the State Civil Service Commission was not filed within the delays in Article X, Section 12(A) of the Louisiana Constitution of 1974, which states, in pertinent part:

“The decision of a referee is subject to review by the commission on any question of law or fact upon the filing of an application for review with the commission within fifteen calendar days after the decision of the referee is rendered. If an application for review is not timely filed with the commission, the decision of the referee becomes the final decision of the commission as of the date the decision was rendered. If an application for re-, view is timely filed with the commission and, after a review of the application by the commission, the application is denied, the decision of the referee becomes the final decision of the commission as of the date the application is denied. The final decision of the commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.” (Emphasis added.)

The record reveals that the decision of the referee of the Civil Service Commission was rendered on May 20, 1983. Appellant did not file an application for review of the referee’s decision, thus that ruling became the final decision of the commission as of May 20, 1983. However, appellant did mail on June 20, 1983, an application for appeal to the commission which was received on June 21,1983. Receipt, not posting, constitutes a filing with the commission for appeal purposes. Johnson v. Louisiana State University, 431 So.2d 447 (La.App. 1st Cir.1983).

Unfortunately, the last day for the timely filing of the application for appeal was June 19, 1983, thirty “calendar days” after the commission’s final decision of May 20, 1983. Johnson v. Louisiana State University, supra.

Accordingly, the motion to dismiss the appeal is granted at appellant’s cost.

MOTION GRANTED.


author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Lloyd LINTZEN, Defendant-Appellant.
    No. CR83-375.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Jan. 6, 1984.

      H. Gayle Marshall, Newman, Thibodeaux & Marshall, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty. and F. Wayen Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   STOKER, Judge.

After a bench trial, defendant Lloyd Lintzen was found guilty of four counts of theft by fraud, each count involving an amount in excess of $500. He was sentenced to eight years in the custody of the Department of Corrections on each count, the sentences to be served consecutively.

The assignments of error raised on appeal concern the sufficiency of evidence regarding two essential elements of the crime, an intent to deprive another permanently of the subject of the misappropriation and the use of fraudulent conduct, practices or representations. Included in the argument of these assignments, but not urged as a separate assignment of error, is an alleged deficiency in the bill of information as to Count Two.

For reasons set out below, we affirm the convictions.

FACTS

Lintzen was charged by bill of information with four counts of theft by fraud in the amounts of $54,000, $5,000, $20,000, and $50,500. The bill of information charged that the thefts occurred between November 29,1977, and February 14,1979. The bill of particulars indicates that Count 1 occurred on November 21, 1978; Count 2 on October 29, 1977; Count 3 on March 16, 1978; and Count 4 on February 14, 1978 and three unknown dates thereafter.

For purposes of clarity, the four counts are detailed as follows:

COUNT AMOUNT DATE VICTIM

$54,000 November 21,1978 Alcee Mere

5,000 October 29,1977 Joseph Biscotti

20,000 March 16,1978 Phil Scott

50,500 February 14,1978 and three unknown dates thereafter David Plaisance

Each of the crimes involved a similar scheme or mode of operation. Lintzen approached each of the victims on the above dates and presented to them a proposition that they invest along with him in a collection of gold coins which were presently available at a very low price. The coins would be sold and the investors would make a large profit on the re-sale. It appears that Scott and Biscotti, who were brothers, knew of each other’s investment, but Mere and Plaisance had no knowledge of any investors other than themselves and Lint-zen.

In each case, Lintzen executed a promissory note in favor of the victim apparently as a show of good faith. The note issued to Mere was for $54,000, the amount of his investment. Biscotti received a note for $12,000, the amount of his investment plus a $7,000 promised profit. Scott’s note was for the amount of his investment, $20,000. Plaisance made an initial investment of $35,000 on which he was assured he would double his money. He received a note at the time of this investment for $70,000. On three separate dates thereafter he gave Lintzen a total of $15,500. Mere and Plai-sance have sought repayment from Lintzen by suing on their promissory notes, but they had received nothing as of the time the criminal charges came to trial.

None of the four victims ever saw the coins in which they were supposed to have invested. Plaisance testified that the coins were supposed to be in a safety deposit box in a North Carolina bank, but when he made an effort to see the coins he was put off by Lintzen.

Lintzen told Mere and Plaisance that they would receive their profits in two to three weeks. He told Biscotti and Scott it would be about three months. In each case the investors tried to contact Lintzen after a substantial amount of time had passed and were unable to do so. Lintzen was finally arrested on September 9, 1981, in Pasadena, Texas.

SUFFICIENCY OF EVIDENCE

Lintzen urges on appeal that under the standard of review set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the state failed to prove every essential element of the crime of theft by fraud. In particular he urges that the state did not prove beyond a reasonable doubt that he intended to deprive the victims permanently of their money or that he obtained the money by the use of fraudulent conduct, practices, or representations.

Under Jackson we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Here, the State relies on circumstantial evidence to prove the elements of the crime in question. Therefore, every reasonable hypothesis of innocence must be excluded. LSA-R.S. 15:438. After applying these standards, we find that the evidence presented by the State in this prosecution was sufficient to support a verdict of guilty.

Each of the counts charged is based on allegations that Lintzen made representations similar in nature that the money given him was to be used for investment in gold coins and would yield a large profit in a short period of time. Despite his show of “good faith” in signing promissory notes payable to each victim, Lintzen has not returned any of the money given him for “investment”, has paid no profits to any of the victims, has made no payments on the debts represented by the promissory notes, nor has he given to the victims any of the gold coins he was supposed to have purchased. In fact, none of the victims ever saw any of the coins in which they “invested”.

Lintzen still contends that the transactions in question were merely investments, not thefts. Although the victims initially believed that they were making investments, the circumstances mentioned above are sufficient to convince a rational trier of fact that Lintzen’s representations regarding the investments were false. He apparently made no effort to continue communication with the victims after their money was turned over to him, and repeated efforts on their behalf to contact him were futile.

We also find that the evidence is sufficient to show that Lintzen intended to deprive the victims permanently of their money. Although proof of intent to deprive permanently is a factual issue, it may be inferred from the circumstances of the transaction. LSA-R.S. 15:445. Despite Lintzen’s signing of promissory notes payable to each victim, he has made no effort to honor these obligations. Circumstances indicate that the promises to pay represented by these notes were only additional false representations made by Lintzen.

Lintzen argues that because some of the victims have sought judgments against him through civil suits it is clear that they viewed their dealings with him as commercial transactions. We disagree. Those victims seeking relief through civil suit are merely pursuing every possible means of recovering their money.

In light of Jackson v. Virginia, supra, we find that the evidence in this case, when viewed in the light most favorable to the prosecution, is sufficient to convince any rational trier of fact beyond a reasonable doubt that every essential element of the crime was proved against Lintzen. We find further that every reasonable hypothesis of innocence has been excluded.

BILL OF INFORMATION

Included in the argument on the assignments of error regarding sufficiency of evidence as to the elements of the crime discussed above is an assertion that the State failed to prove that the offense charged in Count Two occurred during the time period indicated in the bill of information. This claim should have been the subject of a separate assignment of error in order to be considered on appeal. LSA-C.Cr.P. art. 920. Even if we consider it to be an error discoverable by a mere inspection of the pleadings and proceedings, we find it to be without merit.

Count Two in the bill of information was described as the theft by fraud of $5,000 from Joseph Biscotti. All four counts were charged as having been committed between November 29, 1977, and February 14, 1979. The bill of particulars provided to Lintzen clearly indicated that the theft from Biscotti was alleged to have occurred on October 29, 1977, and evidence regarding the transaction between Lintzen and Biscotti on this date was presented at trial without objection.

In this case we find that Lintzen was fairly informed of the charge against him as to Count Two and he has not been prejudiced by surprise or lack of notice. Under these circumstances the alleged discrepancy in the bill of information will not be considered when raised for the first time on appeal. State v. Anderson, 332 So.2d 452 (La.1976). More likely than not the discrepancy in the dates was a clerical error.

DECREE

For the above reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


author:
YELVERTON, Judge.
      DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Lonnie WILLIAMS, Defendant-Appellant.
    No. CR82-815.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Eugene P. Cicardo, Alexandria, for defendant-appellant.
    G. Earl Humphries, III, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   YELVERTON, Judge.

Defendant was charged with theft of livestock, a violation of LSA-R.S. 14:67.1. Waiving a jury, he was tried and found guilty by the district court. He appeals the conviction and has perfected seven assignments of error.

FACTS

Dean Gunter discovered that one of his yearling calves was missing from his herd. On May 6,1981, his inquiries and search led to the discovery in Bayou Boeuf of two floating sacks containing a calf’s head, four feet, the intestines and a hide from which the brand mark had been removed. Dean positively identified the offal from the facial features and peculiar ear markings as his missing yearling.

The writing on the sacks identified them as coming from a local feed mill. Use of those sacks had been discontinued by the mill, and when it was learned that defendant had been in possession of a number of the discarded sacks the investigating officers went to his house to talk to him.

On their arrival, which was May 8th, the officers discovered defendant cutting up a beef with a meat saw behind his house. After his constitutional rights were read to him defendant said that the beef was his, given to him by his father and fattened for a month before slaughter which he said had occurred only the evening before. He told the officers that the remains had been placed in two sacks and thrown into Bayou Boeuf across the road from his house.

The location where the identified offal sacks were found was variously estimated at from one to three miles from defendant’s house.

Defendant told the investigating officers that he had slaughtered his beef under a tree behind his house, moving it to that location in his pickup truck. The officers found no blood, tire marks, disturbance of the grass or other signs of recent butchering at the site.

At the place on the bayou where defendant said he threw the sacked remains, the officers found no footprints or any disturbance of the green slime covering the water.

There was testimony that the offal of a slaughtered cow averages 40% of its total weight. Gunter’s missing yearling weighed close to 500 pounds.

Defendant said he used a .22 caliber rifle to kill his cow. The head of the yearling found in the mill sacks had been shot with a small caliber gun.

The meat defendant was discovered cutting up was in quarters. It was frozen in the middle but thawing on the outside. Defendant said it had been put into the freezer after the beef was butchered late the day before. There was testimony that the quartered meat had once been completely frozen and that freezing could not have occurred overnight.

When the officers arrived defendant had already cut and wrapped one of the hind quarters and returned it to his freezer. The officers seized the other three quarters. The leg bones of these were fitted to the lower portions of the legs from the sacks of offal and found to match.

Defendant testified, as did his son and other relatives, that he had a yearling which he had been fattening for about a month. Defendant and his 16 year old son testified this was the yearling which the two of them shot, hung on a tree limb and slaughtered, and whose remains they disposed of in two mill feed sacks thrown into Bayou Boeuf.

ASSIGNMENTS OF ERROR 1, 2, 3 AND 4

These assignments are grouped together because they each attack the trial court’s rulings permitting the testimony of three non-expert individuals as to their observations. The State did not attempt to qualify any of these witnesses as experts.

Edward Gunter, the brother of the man whose yearling was stolen, testified that the remains found in the two sacks floating in the bayou belonged to a cow or a yearling. Defendant contends this identification required the testimony of a veterinarian or an expert in animal husbandry. We disagree. Expert testimony is not required to make that sort of identification. The trial court properly overruled defendant’s objection to Gunter’s testimony.

Defendant also objected to the testimony of Hadley Crooks, chief investigator for the Louisiana Livestock Brand Commission, and William Hilton, a deputy sheriff. These witnesses were permitted to testify, without being qualified as experts, that they had reunited the leg bones found in the sacks with the bones of the carcass for matching purposes. Both these witnesses observed that the angle of cut, its location on the leg, and the size and configuration of the severed joint appeared to match as to each of the three legs compared. Close-up color photographs of these joints are in the record and we have examined them. The observations of these witnesses are clearly supported by these pictures.

In State v. Sayles, 395 So.2d 695 (La.1981), the court said:

“While it is generally true that a lay witness can testify only as to facts within his knowledge, R.S. 15:463, a witness is permitted to draw reasonable inferences from personal observation. State v. Williams, 353 So.2d 1299 (La.1977). The officers in the instant case, having observed both the powder on the defendant’s clothing and the sheetrock dust in the pharmacy, could state that the two substances were similar. We cannot say that the similarity of the substances is a question ‘involving a knowledge obtained only by means of a special training or experience ...’ R.S. 15:464”

For the same reasons, we conclude that it was a reasonable inference, not requiring special training or experience, for these officers to testify that the parts came from the same yearling.

We likewise find that the description of the wound as made by a small caliber weapon did not require expert ballistics tests or knowledge. We note that the witnesses were not asked to identify the caliber but only its relative size.

Finally, it does not take an expert to establish that a quarter of beef from a 500 pound yearling will not freeze through and through in only one night in a home freezer.

These assignments are without merit. ASSIGNMENTS OF ERROR NOS. 5, 6 AND 7

These assignments contest the denial of the trial court of a motion for acquittal at the conclusion of the state’s case, the failure to comply with the due process requirements of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and error in the application of the circumstantial evidence rule. Since these three assignments involve the sufficiency of evidence, we will discuss them together.

Where the evidence against an accused is entirely circumstantial, as here, the standard of appellate review of a sufficiency of evidence claim is the exclusion of every reasonable hypothesis of innocence. State v. Moore, 432 So.2d 209 (La.1983). The test is whether, viewing the evidence most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved to the exclusion of every reasonable hypothesis of innocence. Jackson v. Virginia, supra; State v. Chism, 436 So.2d 464 (La.1983); State v. Moore, supra.

Defendant and his witnesses offered testimony attempting to establish it was his yearling that he slaughtered and that the offal found in the bayou a distance from his house was from another yearling. This was the hypothesis of innocence he represented to the court as the truth; therefore, it is the only hypothesis of innocence we need examine. The question then becomes whether this explanation is a reasonable hypothesis of innocence. See State v. Shapiro, 431 So.2d 372 (La.1982).

Examining this hypothesis, we find that it is not a reasonable one. The calf was discovered missing on May 3. Its remains were found on May 6. The calf the defendant was butchering on the morning of May 8 was quartered and frozen on the inside, indicating it had been in a freezer for a longer period than overnight. However, the defendant told the officers and he and his young son testified at trial that the beef was butchered on the evening before, May 7.

Defendant pointed the officers to a specific tree where the animal had been allegedly delivered by truck and hung and slaughtered only hours before he was discovered cutting up the frozen meat. Yet no trace of blood, trampled grass or tire tracks was visible. He showed them where the two sacks, heavily laden with offal, had been carried and thrown into the water. There were no footprints near the water’s edge or disturbance of the green scum on the surface.

Defendant said it had rained and obliterated all signs. The officers testified there was no evidence of recent rain.

There were a number of inconsistencies in the testimony of defendant’s witnesses. Only the defendant and his young son actually witnessed the slaughter.

Our Supreme Court has recently held that the fact finder’s decision to disbelieve the defendant’s exculpatory testimony, when it conflicts with other evidence, cannot be upset on appeal “on the basis that the conflicting version constituted insufficient evidence. LSA-Const. Art. V, Sec. 5(C) (1974).” State v. Tompkins, 403 So.2d 644, 647 (La.1981).

We find that the State’s proof excluded every reasonable hypothesis of innocence and that the only reasonable hypothesis remaining is one of guilt. For these reasons, defendant’s conviction is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns by reasons.

DOMENGEAUX, Judge,

concurring.

I agree completely with the majority opinion, but in keeping with my position on the review of facts doctrine I reiterate the views stated in my previous concurring opinion in State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983). I feel that the continued application of the review of facts rationale set out in Jackson v. Virginia, supra, and State v. Mathews, 375 So.2d 1165 (La.1979), results in our appellate courts becoming nothing more than second guessers of the triers of fact.


author: DOUCET, Judge.

text:
    Joseph Dewey DEVILLIER, Plaintiff-Appellant, v. Marie Louise Noel DEVILLIER, Defendant-Appellee.
    No. 83-115.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 21, 1983.

      Charles A. Riddle, III, Marksville, for plaintiff-appellant.
    Kerry Spruill, Marksville, for defendant-appellee.
    Before STOKER, DOUCET and YEL-VERTON, JJ.
   DOUCET, Judge.

In this ongoing domestic dispute, Marie Louise Noel Devillier filed a Petition for Contempt of Court, Money Judgement, and Termination of Inspection Rights against Joseph Dewey Devillier. Mr. Devillier was served the night prior to the assigned hearing date. He appeared in court in proper person the morning following service of process of the rule to show cause and allegedly objected to the timing of notice and consequent inability to retain counsel. Nevertheless, the trial judge, the same day, rendered judgment adverse to Mr. Devillier on all counts. Mr. Devillier, defendant-in-rule, appeals. Plaintiff-in-rule, Mrs. Devil-lier, has answered the appeal. We reverse the judgment as to all counts except that of contempt and remand for further proceedings in accordance with law.

The present litigation was commenced by a Petition for Contempt of Court, Money Judgment and Termination of Inspection Rights filed on behalf of Marie Louise Noel Devillier, plaintiff. This petition was filed November 5, 1982 with an attached Order signed by the district judge ruling Joseph Dewey Devillier to show cause before the Court on November 19,1982, why he should not be held in contempt of court for his disobedience of a prior judgment of said court relative to Mr. Devillier’s right to inspect property owned in indivisión by the parties over which Mrs. Devillier possesses a usufruct. The rule to show cause was limited to the issue of contempt. Mr. Devillier was served with this petition and order on November 18, 1982, wherein he was directed to appear in court the following morning and show cause why he should not be held in contempt.

On November 19,1982 the hearing on the rule for contempt was held. Mr. Devillier appeared in proper person. After the hearing, the trial judge found Mr. Devillier had violated the conditions of the previous judgment giving him the right to inspect the property, found him in contempt and imposed a suspended sentence. Also, Mr. Dev-illier’s right of inspection was amended, despite his protests, and he was enjoined from removing any items of property from the real estate subject to inspection and a money judgment was rendered against Mr. Dev-illier, premised upon his alleged taking of property from the formerly community property.

Appellant assigns the following specification of errors: (1) The trial court erred in allowing this proceeding to be heard without sufficient delays following service and citation upon defendant-appellant; (2) The trial court erred in allowing the use of summary proceedings with no legal basis for the use of summary proceedings; (3) The trial court erred in rendering a money judgment on a rule to show cause. Appellant does not contest the contempt judgment on appeal, therefore that matter is final. In sum, appellant requests a new trial on the issues of damages, his right of inspection and the injunction prohibiting his removal of property. Mrs. Devillier has answered the appeal seeking an increase in damages and absolute termination of Mr. Devillier’s right to inspect property of which he is the naked owner in indivisión with Mrs. Devillier, the usufructuary.

Mrs. Devillier contends that any objection to service was waived by defendant’s appearance and failure to object thereto, relying on La.C.Civ.Pro. Art. 926. Furthermore, she contends that appellant’s objection to unauthorized use of summary procedure, based on the rendition of a money judgment and modification of inspection rights, contemporaneously with the hearing of a contempt rule, was waived by his failure to specifically urge his dilatory exception prior to commencement of trial, citing in support thereof La.C.Civ.Pro. Arts. 928, 2593.

Use of summary proceedings is limited to those matters enumerated in La.C.Civ.Pro. Art. 2592. A rule to show cause is among the authorized matters for summary procedure. However, damages are not recoverable on a rule to show cause; in the absence of special provisions, they may only be recovered via ordinaria. Major v. Hall, 262 La. 243, 263 So.2d 22 (1972). Furthermore, modification of inspection rights is not a punishment for contempt of court provided by law. La.C.Civ.Pro. Art. 227; La.R.S. 13:4611.

Mr. Devillier’s exception of prematurity was not waived. The rule to show cause was limited to the issue of contempt. When Mr. Devillier appeared in court on November 19,1982, he appeared in response to a rule which ordered him to show cause only as to why he should not be held in contempt for having violated the previously issued order regarding inspection rights. The matters of money damages and modification of inspection rights are not proper subjects for summary disposition, absent a consent and waiver of delays by Mr. Devillier. There is no indication in the record that Mr. Devillier consented to broadening the scope of the hearing. There was nothing about the conduct of the proceedings that would have given Mr. Devillier reason to suspect the hearing was not confined to contempt. Not until the trial judge announced his decision did it become apparent the court was considering issues other than contempt.

Although Mr. Devillier did not enter a formal objection, a layman could not be expected to know the formalities of court procedure for entering such objections into the record. Technical pleading rules should not triumph over actual justice. Hardy v. Kidder, 292 So.2d 575 (La.1973); Weinberger Sales Co. v. Truett, 2 So.2d 699 (La.App.Orl.1941).

Accordingly, the judgment of contempt is affirmed; in all other respects the judgment appealed from is reversed and the case is remanded for further proceedings in accordance with law.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . The details of the aforesaid proceeding are set forth in Devillier v. Devillier, 417 So.2d 1334 (La.App. 3rd Cir.1982).