author: MILLS, Judge.

text:
    Fred OTTO, Appellant, v. GAYLA CARPETS and Zurich-American Insurance Agency, Appellees.
    No. AX-379.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1985.

      Earle Lee Butler of Butler & Pettit, Fort Lauderdale, for appellant.
    Anthony J. Beisler, Fort Lauderdale, for appellees.
   MILLS, Judge.

Otto appeals from a workers’ compensation order denying his claim for medical costs and continuing psychiatric care. We affirm.

Otto had an industrial accident on 1 January 1982, injuring his right ankle and foot. Doctors originally diagnosed a sprained ankle. Some months later, however, Otto was referred to Dr. Liss, a podiatrist, who discovered fractures in the foot. Dr. Liss operated on Otto’s foot in February 1983 and again in September 1983.

In November 1983, Otto began showing signs of severe emotional instability and stress. On 16 November 1983, he was taken to Broward General Medical Center where he was observed and then placed, pursuant to the Baker Act, in South Florida State Mental Hospital in the Crisis Stabilization Center. After observation, Otto was released to his parents. Approximately 24 hours later, his mother took him to University Hospital for further observation. After 12 hours at Univérsity Hospital, he was taken to Fort Lauderdale Psychiatric Hospital, where he was admitted by Dr. Vallejo, a psychiatrist and Otto’s subsequent treating physician. Otto was admitted to Fort Lauderdale Psychiatric Hospital on 20 November 1983 and discharged on 28 November 1983.

Otto asserted his psychiatric condition resulted from the foot injury, and sought payment by the employer/carrier (E/C) for the related medical expenses. The E/C controverted, denying a causal connection between the industrial accident and Otto’s psychiatric condition.

Dr. Vallejo diagnosed Otto as suffering from (1) affective disorder, bipolar mixed, and (2) post-traumatic neurosis. He testified that the foot injury initiated a series of events which led to Otto’s nervous breakdown.

At the E/C’s request, Dr. Jordan, another psychiatrist, examined Otto. Jordan testified that Otto’s psychiatric condition was unrelated to the industrial accident. Jordan said the condition was related to a personality disorder which existed long before the industrial accident, and was likely related to anxiety stemming from an illegal drug deal which Otto told Jordan he was involved in.

The deputy denied the claim. He rejected Dr. Vallejo’s testimony and accepted Dr. Jordan’s. He concluded Otto’s psychiatric condition was not “in any way related, aggravated, or accelerated by the industrial accident.”

Otto first asserts the deputy committed five procedural errors at the hearing. Although workers’ compensation hearings are subject to the rules of evidence, Odom v. Wekiva Concrete Products, 443 So.2d 331 (Fla. 1st DCA 1983), the alleged errors are insignificant because they affect only tangential testimony. To decide the case, the deputy had to choose between different medical opinions of causation. Because none of the alleged errors affected the medical testimony, they are harmless if error at all.

Otto next contends the deputy’s finding that he has a history of substance abuse is not supported by competent substantial evidence. We find competent substantial evidence to support the finding in the testimony of Dr. Vallejo and Dr. Jordan. Both doctors testified Otto told them he had used cocaine.

Otto also contends the deputy erred in accepting Dr. Jordan’s testimony. First, he argues that Dr. Jordan’s opinion that his psychiatric condition was related to anxiety stemming from an illegal drug deal was based on his hallucinatory statement that he was involved in a drug deal. Thus, the argument goes, Dr. Jordan’s opinion is not based on facts supported by the record. We reject this argument because there is nothing in the record conclusively showing Otto was hallucinating at the time he was examined by Dr. Jordan.

The second argument concerning Dr. Jordan’s opinion is that the deputy erred in failing to state why he accepted Dr. Jordan’s testimony and rejected Dr. Vallejo’s testimony. We find the deputy’s statement in the order that he found Dr. Jordan’s testimony “the most logical, well reasoned and acceptable” sufficient.

AFFIRMED.

JOANOS and BARFIELD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David ROLLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1039.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Bennett H. Brummer, Public Defender, and Paul Morris, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

This appeal presents the same issue as that framed in Neil v. State, 433 So.2d 51 (Fla. 3d DCA 1983), wherein this court certified to the Supreme Court of Florida the following question of great public importance:

Absent the criteria established in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), may a party be required to state the basis for the exercise of a peremptory challenge?

The certified question has been resolved in State v. Neil, 457 So.2d 481 (Fla.1984). Applying to this record the test announced by the Florida supreme court, we conclude that no reversible error has been demonstrated.

We have considered the other issues raised by the appellant and find them to be without merit.

The convictions and sentences entered thereon are accordingly affirmed.


author: PER CURIAM..

text:
    Crescencio F. DIAZ, Appellant, v. Salvador HILL, Appellee.
    No. 84-502.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Henry B. Rothblatt and Linda F. Nelson, Fort Lauderdale, for appellant.
    Rubin, Baum, Levin, Constant, Friedman & Bilzin and Richard L. Allen, Miami, for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM..

Pursuant to a stipulation between the parties, the final judgment is amended to clarify that the plaintiff shall recover from the defendant his taxable costs and reasonable attorneys’ fees as to Count One only, and, as amended, the final judgment is affirmed.

Affirmed.


author: BASKIN, Judge.

text:
    Joaquin O. REICHEINBACH, Appellant, v. SOUTHEAST BANK, N.A., a National Banking Corporation, Appellee.
    No. 84-1298.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Samuel I. Burstyn, Miami, for appellant.
    Taylor, Brion, Burker & Greene and Ar-naldo Velez, Miami, for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   BASKIN, Judge.

Appellant Reichenbach challenges the trial court’s denial of his motion to vacate a default judgment entered against him in a mortgage foreclosure proceeding. He contends that the bank agreed to a thirty-day extension of time for the filing of pleadings and, relying on Rule 1.500(b), Florida Rules of Civil Procedure, he asserts that a letter confirming the extension, mailed by his attorney to the attorney for the bank, constituted service of a paper entitling him to notice prior to the entry of a default. Appellant points out that the bank continued to participate in settlement discussions with appellant’s counsel who remained unaware of the default until he received a copy of the final judgment in the mail. Upon learning of the entry of the final judgment and of the impending auction sale of his residence, appellant promptly filed a motion to set aside the final judgment; however, before the motion was heard, the bank purchased the residence at auction for the sum of $100, leaving a deficiency of ISGO^GSVS. The trial court subsequently denied appellant’s motion to vacate the default judgment. We reverse.

Florida Rule of Civil Procedure 1.500(b) provides:

By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default.

A paper served prior to the entry of default triggers the requirement that the party against whom a default is sought be served with notice of the application. In the case under consideration, the letter confirming the bank’s agreement to an extension of time constituted a paper served within the meaning of rule 1.500(b). Zettler v. Ehrlich, 384 So.2d 928 (Fla. 3d DCA 1980) (Schwartz, J., specially concurring). See also, Roland v. W.L. Motor Lines, Inc., 32 N.C.App. 288, 231 S.E.2d 685 (1977). Any paper served prior to the entry of a default requires the furnishing of notice.

We reject appellee’s assertion that the letter was insufficient to require notice because it was not a responsive pleading. The rule does not limit the type of paper to be served. We note that the letter was served within the time agreed to by the bank. We hold that the letter served upon appellee fulfilled the requirements of rule 1.500(b) and entitled appellant to notice of default proceedings.

Our holding accords with the liberal policy of Florida courts to grant motions to set aside defaults. See, e.g., North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983); Schmitz v. Ryan, 427 So.2d 1013 (Fla. 2d DCA 1983). Reasonable doubts are resolved in favor of granting the application and permitting trial upon the merits. North Shore Hospital; Wien v. Quayside Realty, Inc., 462 So.2d 569 (Fla. 3d DCA 1985); Perdue; American Republic Insurance Co. v. Westchester General Hospital; 414 So.2d 1163 (Fla. 3d DCA 1982); Dillon v. Machinery Wholesalers Corp., 414 So.2d 1094 (Fla. 3d DCA 1982).

We are aware that appellant has failed to demonstrate a meritorious defense in support of his motion to vacate; nevertheless, the erroneous entry of the default entitles him to relief. Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734, 735 n. 3 (Fla. 3d DCA 1980); Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So.2d 744 (Fla. 4th DCA 1974).

The Order on Defendant’s Motion to Vacate Default Judgment is reversed and the cause is remanded for further proceedings.

      . The deficiency has apparently not been reduced to judgment.

      . The letter stated:
      As per our conversation please be advised that I have been contacted by all of the aboved [sic] captioned defendants in order to represent them.
      Before filling [sic] an answer on their behalf, I will need a retainer, and also, as I understand it, Southeast Bank has given a thirty day extention [sic] to Mr. Reichenbach before continuing with the foreclosure.

        .See Fla.R.Civ.P. 1.500(c); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980); Freedman v. Freedman, 235 So.2d 544 (Fla. 3d DCA 1970).


text:
    John G.E. WILLIAMS, Appellant, v. Esther Janet WILLIAMS, Appellee.
    No. 84-338.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1985.
    Hubert R. Lindsey, West Palm Beach, for appellant.
    Ronald Sales of Law Office of Ronald Sales, P.A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383 (Fla.1983).

ANSTEAD, C.J., GLICKSTEIN, J., and GOLDMAN, MURRAY, Associate Judges, concur.


author: SCHOONOVER, Judge.

text:
    Robert L. PIERSON, Appellant, v. Debra Fulford PIERSON, Appellee.
    No. 84-586.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1985.
    Guy M. Burns, Jacobs, Robbins, Gaynor, Burton, Hampp, Burns, Bronstein & Shasteen, P.A., St. Petersburg, for appellant.
    Mark P. Kelly, Freeman & Lopez, P.A., Tampa, for appellee.
   SCHOONOVER, Judge.

Appellant, Robert L. Pierson, has appealed from a final judgment of dissolution of marriage. We find that the trial court erred in awarding to appellee, Debra Ful-ford Pierson, one year of rehabilitative alimony in the amount of $60 per week, but affirm the judgment in all other respects.

The principle purpose of rehabilitative alimony is to establish the capacity for self-support in the receiving spouse, through redeveloping previous skills or providing new training to develop potential supportive skills. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

In this case the parties lived together less than nine months. Before, during, and after the marriage, appellee was employed as a bartender and was earning at least the same salary that she had earned prior to the marriage. Appellee and her child by a former marriage had lived with appellee’s father before her marriage to appellant, and they returned to his home after the parties separated. Prior to the entry of the final judgment of dissolution of marriage, appellee enrolled in one course at a local college. The record reflects neither the nature of the course nor the purpose for which it was taken. There was no evidence that the course would assist appellee in redeveloping or improving the position she held prior to, during, and after the marriage. Furthermore, nothing in the record reflects that appellee incurred relocation expenses in moving back to her father’s home. The trial court therefore erred in awarding rehabilitative alimony. Canakaris; see also, McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977); Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980).

We, accordingly, remand this case to the trial court with directions to strike that portion of the final judgment awarding rehabilitative alimony to the appellee. We affirm in all other respects.

Affirmed in part, reversed in part.

OTT, A.C.J., and CAMPBELL, J., concur.

      . A transcript of the proceedings, in the trial court was not furnished to this court. The statement of evidence submitted by the parties fails to reflect the parties' age, educational background or their physical and emotional condition.


text:
    Timothy W. LEE, Appellant, v. STATE of Florida, Appellee.
    No. 84-788.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1985.
    James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The defendant was charged with violating two conditions of probation. The evidence at the hearing would support the trial court’s revocation of probation on either of the two grounds. However, the order revoking probation did not state which condition or conditions defendant had violated. Therefore, the case is remanded to the trial court for a correction of the order to indicate which condition or conditions of probation were found to have been violated.

SCHEB, A.C.J., and LEHAN and FRANK, JJ., concur.


text:
    Robert Preston SWYERS, Appellant, v. STATE of Florida, Appellee.
    No. 84-2444.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1985.
   PER CURIAM.

Appellant Robert Preston Swyers challenges the trial court’s order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Upon consideration of this motion, and after review of the record documenting the trial court’s disposition of appellant’s previous motion for postconviction relief, we affirm the trial court’s summary denial.

OTT, A.C.J., FRANK, J., and BOARD-MAN, EDWARD F. (Ret.), J., concur.


author: DIXON, Chief Justice. CALOGERO, Justice, LEMMON, Justice,

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. K-MART CORPORATION; K-Mart Discount Store No. 7386, 5990 Lapalco Boulevard, Marrero, Louisiana 70072; K-Mart Discount Store No. 7088, 1615 Westbank Expressway, Harvey, Louisiana 70058; K-Mart Discount Store No. 3423, 1400 South Clearview Parkway, Metairie, Louisiana 70001; K-Mart Discount Store No. 7223, 7000 Veterans Memorial Boulevard, Metairie, Louisiana 70003. STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. GAYLORD NATIONAL CORPORATION; Gaylord’s Discount Department Store At 100 North Labarre Road, Metairie, Louisiana; Gaylord’s Discount Department Store At 900 Manhatten Boulevard, Harvey, Louisiana; Gaylord’s Discount Department Store At 2024 Belle Chasse Highway, Gretna, Louisiana; Gaylord’s Discount Department Store At 755 Veterans Memorial Boulevard (Corner of Martin Behrman Street), Metairie, Louisiana. STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. HOME DEPOT, INC. and the Home Depot Store At 62 Westbank Expressway, Gretna, Louisiana.
    Nos. 84-CA-1565 to 1567.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
    Rehearing Denied March 7, 1985.

      William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., John R. Flowers, Jr., Barbara Rutledge, Kenneth C. Fonte, Louis M. Jones, Maureen Feran Freedland, Asst. Attys. Gen., for plaintiff-appellant in all cases.
    Harvey C. Koch, Joe M. Inabnett, Gary J. Rouse, Margaret M. Groome, Harvey C. Koch and Associates, New Orleans for defendants-appellees in 84-CA-1565.
    Terry J. Freiberger, Montgomery, Barnett, Brown & Read, New Orleans, for defendants-appellees in 84-CA-1566.
    Robert E. Barkley, Jr., Francis R. White, III, Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, New Orleans, for defendant-appellee in 84-CA-1567.
   DIXON, Chief Justice.

In these three consolidated cases, the State of Louisiana, through the attorney general, appeals from the district court ruling decreeing the Sunday Closing Laws (R.S. 51:191-94) unconstitutional.

The' state filed a petition for injunction against each of the three appellees herein — K-Mart Corporation, Gaylord National Corporation and Home Depot, Inc. The petitions alleged that the stores were in violation of R.S. 51:194 by selling on Sunday certain merchandise prohibited by the statute; the petitions prayed that injunctions be issued enjoining the defendants from engaging in the sale of merchandise on Sunday.

The three cases were consolidated and set for a hearing on a preliminary injunction. Prior to the hearing, however, Gay-lord and Home Depot filed petitions for removal to the United States District Court for the Eastern District of Louisiana. The state district court, proceeding in the K-Mart case, then granted the state’s request for a preliminary injunction; but at the trial of the permanent injunction, the trial court vacated its injunctive order and rendered judgment in favor of K-Mart declaring R.S. 51:191-94 unconstitutional.

Meanwhile, the United States District Court granted the state’s motion for remand of the Gaylord and Home Depot cases. Subsequent to remand, the state district court handed down a similar ruling in the Gaylord and Home Depot cases declaring the Sunday laws unconstitutional. The three cases are on direct appeal to this court pursuant to Louisiana Constitution art. 5, § 5(D)(1).

The Sunday closing laws are compiled from old statutes and have withstood constitutional attack many times. State ex rel. Walker v. Judge of Section A, 39 La. Ann. 132, 1 So. 437 (1887) (Act No. 18 of 1886 does not violate the equal protection clause nor infringe upon the right to religious freedom); State v. Trahan, 214 La. 100, 36 So.2d 652 (1948) (exception permitting hotel and boarding house restaurants to sell wine with meals on Sunday does not constitute unjust discrimination against ordinary restaurants); State v. Wiener, 245 La. 889, 161 So.2d 755 (1964) (“wearing apparel” is not unconstitutionally vague); State v. Deutch, 245 La. 819, 161 So.2d 730 (1964) (“building supply materials” not unconstitutionally vague); State v. Scallon, 374 So.2d 1232 (La.1979) (Sunday closing law not a denial of due process or equal protection); Harry’s Hardware, Inc. v. Parsons, 410 So.2d 735 (La.1982) (Sunday closing law not a denial of due process or equal protection).

R.S. 51:191 (Act 18 of 1886) declares that all stores and places of public business shall be closed on Sunday and supplies criminal sanctions for non-compliance; that section has not been amended. Section 192 contains the twenty-four exemptions listed in Act 18 of 1886, plus exemptions for art galleries (added in 1979) and the World’s Fair (added in 1983). The exemptions range from “places of resort for recreation and health” to drug stores, livery stables, markets, hotels, book stores, restaurants, etc.

R.S. 51:193 (Act 146 of 1918) requires the Sunday closing of barber shops.

R.S. 51:194 was first enacted by Act 273 of 1962, and forbids the sale, by anyone engaged in the business of selling, of the following items: clothing or wearing apparel, lumber or building supply materials, furniture, home business and office furnishings, household, office, or business appliances and new or used automobiles or trucks. In 1972, 1977 and 1983, exemptions from the prohibition were added for sales in connection with mobile homes or real property, sales in the Vieux Carre, sales in “Catfish Town” in Baton Rouge and sales at the World’s Fair. Act 273, unlike the previous act, provides for injunc-tive relief as well as criminal penalties.

Sunday closing laws are not, in themselves, unconstitutional. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). The Fourteenth Amendment gives substantial latitude to the individual states in promulgating laws through their police power. State laws may be constitutional even if they create classifications of the affected constituency and result in uneven treatment to the different statutory classes. The legislature’s wisdom in enacting such discriminatory laws will not be overridden if “any set of facts reasonably may be conceived to justify [the laws].” McGowan v. Maryland, supra, at 425-26, 81 S.Ct. at 1104-05.

Such justification is usually determined by an analysis of the law’s purpose and of the means by which the purpose is carried out. If the purpose or effect of the statute is to discriminate against so-called suspect classifications, such as race or al-ienage, or involves a constitutionally protected area such as freedom of expression, the laws will be strictly scrutinized. If such suspect classifications are not involved, then the statutory means need only be rationally related to a legitimate statutory end.

In the words of the United States Supreme Court:

“When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. See, e.g., Lehnhausen v. Lake Shore Auto Parts Co. 410 U.S. 356, 93 S.Ct. 1001 [35 L.Ed.2d 351] (1973). Unless a classification trammels fundamental personal rights or is. drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. Legislatures may implement their program step by step, Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717 [16 L.Ed.2d 828] (1966), in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations. See, e.g., Williamson v. Lee Optical Co. 348 U.S. 483, 488-489, 75 S.Ct. 461 [464-465, 99 L.Ed. 563] (1955). In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines, see, e.g., Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405 [407, 96 L.Ed. 469] (1952); in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment. See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.Ct. 1028 [1032, 10 L.Ed.2d 93] 95 A.L.R.2d 1347 (1963).” City of New Orleans v. Dukes, 427 U.S. 297, 303-04, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976). (Emphasis added).

In the instant case the law’s stated purpose is to promote the health, safety and welfare of the citizens of this state and to inhibit unfair competition among the various businesses in the community. (Section 194(C)). There is no indication that the statute purports to do anything other than provide a day of rest for the state population employed in “places of public business.” R.S. 51:191.

The trial court found that although such a statute might have been, in the Nineteenth Century, a necessary or rational means for providing a day of rest for workers, the statute now fails in its goal, since labor union rules and federal wage and hour laws prevent employees from working seven days per week. It is unnecessary to question the accuracy of the trial court’s conclusions, for even if they are correct, a state legislature still has the prerogative to enact laws to ensure the health of its constituency in spite of union rules and federal laws and regulations designed to achieve the same end.

The trial court also found that the law’s second purpose (preventing unfair competition) is thwarted by the numerous statutory exemptions to the statute. The court further found that the classifications and exemptions actually promote unfair competition since the scheme leads to situations where two stores, each selling the same merchandise, are treated differently — one is allowed to open while one is not.

This contention has already been disposed of by this court as containing no merit. In Harry’s Hardware, Inc. v. Parsons, supra, at 737-38, it was stated:

“The exemptions created by the statute are those that the legislature deemed necessary to safely provide for the welfare of the public while mandating a forced closing of most businesses. Drug stores and public markets are exempted to allow the sale of medicine and food on Sunday. Funeral homes may remain open as the inevitability of death cannot be averted on Sunday. The exemptions for theatres, book stores and art galleries are consistent with the intent to provide a day of rest and recreation. Hotels are exempted to provide a place of residence for out-of-town visitors.
Each of the exemptions provided by the Sunday Closing Law is rationally related to the state’s objective in enacting such a statute. The discrimination suffered by the plaintiffs hardware stores is a byproduct of a rational legislative scheme whereby the leisure and recreation of the populace is fostered without concomitant deprivation of access to essentials such as food and medicine. This discrimination does not become invidious merely because those drug and grocery stores which are allowed to remain open may also sell non-food and non-drug items. Although the plaintiff demonstrated substantial similarity between the inventory of its hardware outlets and the inventories of present day drug and grocery stores, we do not find that this similarity renders any statutory distinction between hardware stores and food or drug stores arbitrary and, unreasonable. While inventories may overlap, drug stores remain primarily retailers of pharmaceutical products and grocery stores remain primarily retailers of food items. To provide public access to precisely these essentials, rather than hardware or other non-food or non-drug items, drug and grocery stores may remain open on Sunday. We cannot say the legislature acted unreasonably or arbitrarily in treating food and drug stores in a different manner than hardware stores under the Sunday Closing Law.”

The trial court also found that the Sunday laws are selectively enforced throughout the state and thus constitute a denial of equal protection. The court cited the fact that the attorney general’s office does not initiate enforcement proceedings absent a citizen complaint. The trial judge also noted that numerous drug stores allowed to remain open on Sunday under § 192 advertise products prohibited for sale on Sunday by § 194 and yet no steps are taken to prosecute those stores.

A concept imbedded in our system of law enforcement is prosecutorial discretion. Prosecuting agencies have broad powers in deciding whether to institute a prosecution in a given case. However, as with any governmental power delegated to an agency or official, this discretion must not be used arbitrarily, capriciously, or maliciously, but rather must be used to further the ends of justice.

In the words of the United States Supreme Court, “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.” In order to find such a violation, it must be shown that “the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). See also United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

Since there was no showing made by appellees that the instant prosecution was based upon such an unjustifiable standard, the trial court’s ruling on this ground must be reversed.

The trial court’s final ground for holding § 194 unconstitutional was that the statute is vague and, as such, fails to give reasonable notice of the prohibited conduct. In its reasons for judgment, the trial court stressed the evidence adduced at trial that even experienced law enforcement officials were unable to determine the particular items proscribed by the statute.

Since § 194 provides for criminal as well as civil sanctions, the statutory language must pass a strict vagueness test. The statute “must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972); for “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).

However, these strict standards are tempered by the fact that the regulations under scrutiny are economic in nature, directed not to the general populace but rather to individuals in the business community.

“... Thus, economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.... ” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982).

In any case, the enumerations in question do not pose a significant problem even for the non-sophisticate. Two of the categories have already survived vagueness challenges in this court. See State v. Deutch, supra, which held that the term “building supply materials” was not vague; and State v. Wiener, supra, in which the term “wearing apparel” was challenged.

As for the remaining categories, each is relatively easy to define with the help of a dictionary and commonsense. In cases where a certain item may straddle the fence and be susceptible of contrary interpretations, the proper test to be applied is derived from the overall purpose of the statutory scheme: that is, is the product necessary for the daily physical, intellectual, or emotional subsistence of a human being living a contemporary lifestyle such as, for example, foodstuffs, medication, newspapers or periodicals, hotels and restaurants; or is the item of such a nature that it can be bought at a later date with no harm to the physical, mental or emotional well being of the individual, such as furniture and appliances.

Accordingly, the ruling of the district court declaring R.S. 51:191-94 unconstitutional is reversed. The cases are remanded to the district court for further proceedings consistent with this opinion, at the cost of defendants.

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

WATSON, J., dissents for reasons assigned in dissenting opinion in Harry’s Ace Hardware, Inc. v. Parsons, 410 So.2d 735 (La., 1982).

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion, which holds the entire Sunday Closing Law statutory scheme (La.R.S. 51:191-94) constitutional.

The enactment of legislation establishing a uniform day of rest on which business activities are restricted is not in itself such an unreasonable exercise of the police power as to require a finding that any such statutory scheme is per se unconstitutional. However, the statutory scheme must not create arbitrary distinctions, and it must be rationally related to the state purpose in enacting it. Unfortunately, our Sunday Closing Laws, as a whole, fail on both counts, that is, they create 1) arbitrary distinctions that 2) lack any rational relationship to the state purpose in enacting them.

The stated purpose of the law is to promote the health, safety and welfare of the citizens of this state and to inhibit unfair competition among the various businesses in the community. Generally, La.R.S. 51:191-92 regulate which businesses can open. Then, La.R.S. 51:194 regulates what can be sold in those which are permitted to open. When these provisions are considered together, they discriminate against certain merchants (requiring them to remain closed), which sell the same items as other merchants who are allowed to open. If anything, this fosters rather than inhibits unfair competition among the various businesses.

Therefore, at the very least, in my view, for the Sunday Closing Laws to survive the constitutional attack at all, it can only survive insofar as it limits what can be sold at all (although even that provision, La.R.S. 51:194, is dangerously vague and requires immediate legislative attention) and not insofar as it regulates, under La.R.S. 191-92, which merchants can open. See Harry’s Hardware, Inc. v. Parsons, 410 So.2d 735 (La.1982), Calogero, J., dissenting. Accordingly, I dissent.

LEMMON, Justice,

dissenting.

Inasmuch as this action seeks to enjoin the Sunday sale of articles prohibited by La.R.S. 51:194, the issues are entirely different from those presented in Harry’s Hardware, Inc. v. Parsons, 410 So.2d 735 (La.1982), which sought to declare unconstitutional the entire Sunday closing law scheme contained in La.R.S. 51:191 et seq.

I dissented in the Harry’s Hardware case without assigning reasons. I concurred in the conclusion that Section 191 (requiring the closing of every place of public business on Sundays) and Section 192 (providing exceptions to the general closing requirement for those businesses related to medical, recreational, amusement or sustenance needs) established a rational (although outdated) scheme for providing a uniform day of rest. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). I parted company with the majority, however, when they concluded that the businesses permitted by Section 192 to remain open on Sundays could sell any article not prohibited by Section 194, regardless of whether those articles were related to the purpose for the exemption listed in Section 192. I would have permitted those businesses which were exempted by Section 192 from the general closing requirement to remain open on Sundays, but would have restricted their sales to items related to the purpose of the exemption.

In my opinion, such a restriction was necessary to sustain the constitutionality of the statute, and the majority’s broader interpretation rendered the statute violative of the constitutional guarantee of equal protection of the law, since exempted stores and non-exempted stores were treated radically different as to the articles of merchandise not related to the exemptions provided by Section 192.

The present case concerns only the constitutionality of Section 194, which prohibited the sale of certain items of merchandise on Sunday by “any person”, with certain exceptions. Several additional exceptions have been added in recent years.

In my opinion Section 194 is unconstitutional because Subsection A is too vague to provide reasonable notice of the prohibited conduct. Although this is a civil action, Section 194 is a criminal statute which subjects violators to possible jail terms. A criminal law must be sufficiently clear to provide a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited in order that he may conform his conduct thereto. State v. Gisclair, 363 So.2d 696 (La.1978). Since the meaning of a criminal statute must be clear to the average citizen, a criminal statute which is so vague that men of ordinary intelligence must guess at its meaning violates the notice requirement of due process. State v. Stilley, 416 So.2d 928 (La.1982). Moreover, vague criminal laws lead to arbitrary and discriminatory enforcement by the authorities charged with the duty of carrying out the laws.

Section 194 A prohibits the sale on Sunday of six general categories of merchandise. The evidence established that store managers, attorneys, and law enforcement personnel candidly admit that while many items of merchandise clearly fall into or outside of the six general categories, hundreds of other articles cannot be clearly defined as either prohibited or permitted. Indeed, the statute raises as many questions as it answers. Moreover, the lack of a scienter requirement in the statute aggravates the vagueness problem from the standpoint of enforcement as a criminal law.

Section 194, when considered along with Sections 191 and 192 as part of the overall scheme for prohibition of sales and services on Sundays, presents other problems. Sections 191 and 192 were enacted in 1886 to provide a rational scheme for affording a uniform day of rest. As indicated earlier, these two statutes present no significant constitutional or practical problems, except for the need for the updating of exemptions. However, the Legislature, in enacting Section 194 in 1962, took an entirely different approach to the regulation of business on Sunday by prohibiting the Sunday sale only of certain items. In adopting this entirely new approach, the Legislature did not expressly repeal Section 191’s general requirement of closing on Sundays (which would not have been a popular legislative action in many parts of the state). However, the adoption of the totally new approach in 1962 and the subsequent amendments to Section 194 convince me that the Legislature impliedly repealed Sections 191 and 192.

For example, Section 191 (if that section is still viable) would require a furniture store to remain closed on Sundays, even if that store is located in the Vieux Carre’, because Section 194 E exempts sales of furniture on Sundays in the Vieux Carre’ only from the prohibitory provisions of “this Section” (which prohibit generally the sale of furniture on Sundays by any person). Nothing in Section 194 exempts furniture stores in the Vieux Carre’ from Section 191’s requirement that all places of public business (except those expressly exempted by Section 192) close on Sundays. Likewise, a clothing store located in Catfish Town would be required by Section 191 to close on Sundays, even though Section 194 E exempts retail outlets in that area from Section 194 A’s prohibition against the Sunday sale of wearing apparel. It would be absurd to conclude that the Legislature went to such lengths to provide in Section 194 E and its amendments for very detailed exemptions from the prohibitions of Section 194 A, while at the same time leaving the closing requirement of Section 191 in full effect. The far more logical conclusion is that the Legislature intended Section 194 as a new and complete regulation of Sunday closing laws which replaced the earlier outdated regulatory scheme. Indeed, as illustrated above, it was essential to the effectiveness of the exemptions contained in Section 194 E and its amendments that Section 191 did not remain in effect.

Finally, the title of Acts 1962 No. 273 (which adopted Section 194) suggests an intent to exhaustively regulate “with respect to commodities, products and other items of consumer goods which shall not be sold or offered for sale on the first day of the week, commonly designated as Sunday”, and the act itself was obviously designed as a total revision of the outmoded 76-year old Sunday sales regulations then in existence. See Pick’s Auto Parts No. 2, Inc. v. Hodge’s Auto Parts, 334 So.2d 547 (La.App. 4th Cir.1976). The fact that the 1886 statute could not be applied satisfactorily to merchandising methods of the 1960s presumably led to the comprehensive revision of the Sunday laws. Perhaps the Legislature, in revising the outdated laws, would have been wiser to retain Section 191’s requirement that all places of business be closed and to restrict Sunday sales by the places of business exempted by Section 192 to those items related to the purpose of the exemptions. However, the Legislature chose instead to prohibit the Sunday sale of specified items by any persons and to provide particular exemptions from that universal prohibition. That choice indicates an intent to discard the former regulations, especially since the continued applicability of Section 191 would destroy the effectiveness of the exemptions in the new legislation.

I therefore conclude that Sections 191 and 192 did not survive the 1962 enactment of the comprehensive Section 194 and are no longer enforceable, having been impliedly repealed.

      . La.R.S. 51:191-92 date back to 1886. The distinctions drawn then, between which stores could open consistent with the state purpose of promoting the health, safety and welfare of the citizens and which could not, allowing drug stores and food stores to open, had a rational basis. However, today, in the age of the modern super stores which might be labeled "drug stores" but sell everything from clothing to hardware, those distinctions no longer retain that rational relationship to the state purpose supporting the law.

      . Section 192’s exemptions, which included livery stables, watering places, horse railroads and sales of ice, obviously needed updating.

      . For example, I would have permitted a drugstore to remain open on Sunday, but would have restricted the sales to drugs, medicines, and other items for medical and health care.

      . Admittedly, the Legislature did exempt sales at the Louisiana World Exposition from the prohibitions of both Sections 191 and 194. However, that was a special exemption of limited duration and applicability which should not be determinative of general legislative intent regarding Sunday sales.

      . By the 1960s, drug stores were selling a greater variety of merchandise than did the general stores of the 1880s.


author: BLANCHE, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Samuel GENTRY.
    No. 84-KK-1356.
    Supreme Court of Louisiana.
    Jan. 14, 1985.

      James F. Quaid, Gretna, for defendant-applicant.
    John Mamoulides, Dist. Atty., Louise Korns, Asst. Dist. Atty., William C. Credo, III, Metairie, for respondent.
   BLANCHE, Justice.

On June 29, 1983, a one pound package prepared for shipment was deposited with Ernesto Lugo who was an employee of Associated Forwarders, Inc. Associated was a shipping company located in the International Trade Building in New Orleans (Orleans Parish). The person shipping the package filled out an airway bill designating the shipper as one Dick Gozinya, 198 Needalay, Kenner, Louisiana 70330. The air bill was signed by Seymour Buts and a check in the amount of $54.00 was given by the defendant in payment of the shipping charges. The item was to be shipped to Bill Doyle, Villa Elizabeth, Rue Margurite, Mundeliea La Natonle, France 06210.

This parcel was accepted by the agent, Lugo, who put it in an envelope to be sent to DHL Worldwide Courier Service for whom Associated is an agent. Lugo then placed the envelope in a mailbag which was in turn transported for final packaging to the DHL offices located at the airport in Kenner (Jefferson Parish).

Testimony revealed that if the package appeared to contain any matter other than documents, or if they were unable to discern from a cursory inspection what was contained in a package, other than documents, then their standard operating procedure was to inspect the contents of the package so as to ascertain if it met custom regulations of the receiving country. When the envelope containing the package bound for France was received by DHL, its employee, Brian Manchester, inspected the exterior of the package and felt a suspicious lump which he thought did not feel like paper or documents. Following DHL’s standard operating procedure so as to satisfy himself that the package met custom regulations for articles other than documents, Manchester, in the presence of the Station Manager, Joseph Schoenbaechler, opened the envelope and the package within. There, he found a plastic audio cassette holder which did not house a cassette tape but contained a plastic bag with a white powdery substance inside. Presuming the substance to be narcotics, Schoenbaechler contacted the local Drug Enforcement Agency Office. The DEA directed Mr. Schoenbaechler to lock up the envelope and they would send someone out to investigate the next day. The DEA in turn notified the Kenner Police Department and Detective Henry Richardson went to the DHL facility to inspect. A field test analysis revealed the substance to be cocaine.

According to Richardson, the envelope also contained the airway bill and a check drawn on the Bank of New Orleans in the amount of $54.00, dated June 29, 1983, payable to the order of DHL, signed by S.R. Gentry and contained the following imprinted identification: Samuel Gentry, Lie. 1800463, Ph. 895-0453, 4330 Annunciation Street, New Orleans, Louisiana 70115.

A bill of information was filed by the Jefferson Parish District Attorney’s office charging the defendant, Samuel Gentry, with distribution of cocaine, a violation of La.R.S. 40:967(A). A pre-trial motion to suppress, and a motion to quash were heard and ultimately denied by the trial court. The appellate court affirmed that decision.

The applicant filed for writs of certiorari, prohibition and mandamus with this Court and we granted to review the lower court’s denial of the motion to quash the jurisdiction and the motion to suppress the evidence obtained and the identification of the defendant.. 457 So.2d 1185 (La.1984).

Motion to Suppress Defendant’s Identification

The defendant contends that the district court erred by finding his identification admissible as evidence of the person who gave the package to Mr. Lugo for shipment. Gentry bolsters this argument by referring to testimony given by Mr. Lugo in which Lugo stated that he was able to identify Mr. Gentry as a customer but unable to positively link the defendant with the package containing the contraband.

In other words, the defendant wants his identification suppressed because he was never positively identified as the person who brought the package to Mr. Lugo for delivery. This is a factual determination for the jury and not a ground to suppress the identification. Gentry is merely claiming that he cannot be connected with the crime.

The fact of the matter is that a motion to suppress is the improper procedural vehicle. The validity of the identification is not at issue. It is not a question that there was misidentification. The question is whether he can be brought to trial in the absence of a positive identification that connects him with delivery of the package. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. State v. Taylor, 422 So.2d 109 (La.1982); State v. Robertson, 421 So.2d 843 (La.1982). Evidence or lack thereof is an issue for trial and is not required to sustain a bill of information. Probable cause sustains a bill of information and can be properly challenged, in criminal matters, in a preliminary examination. The issue of identification presented by the defendant here is one of sufficiency of evidence which is to be established at a trial on the merits and not on a motion to suppress.

Therefore, it is this Court’s conclusion that the trial court did not err in denying defendant’s motion to suppress his identification.

Motion to Quash for Improper Venue

The defendant argues that the State is unable to prove he committed a crime in Jefferson Parish, therefore Jefferson is a place of improper venue. He contends that none of the alleged elements of the crime were committed in Jefferson Parish. The State on the other hand maintains that the distribution of the drug should be viewed as a continuous crime and that it is not complete until delivery has been made.

The defendant alleges that the State has not proven it was Gentry who deposited the package with Associated. La.Code of Criminal Procedure Art. 611 provides:

All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in which any such act or element occurred.

La.Code of Criminal Procedure Art. 615 provides:

Improper venue may be raised by motion to quash, and in such case the motion shall be tried by the judge alone. Even if the issue of venue has been passed upon by the judge prior to trial, the State on the trial shall have the burden of proving proper venue beyond a reasonable doubt.

“If an offense is continuing in the sense that part of the offense is committed in one parish and another part in another parish, it falls within the scope of this article.” La.Code Crim.Proc. Art. 611, comment (d). This comment is referring particularly to the second sentence of Art. 611 whereby action against the defendant can be brought in any parish where it has been determined that the elements of the crime were committed.

The court of appeal was correct in their conclusion that the transfer of possession or control, i.e. distribution, is not limited to an actual physical transfer between the culpable parties. State v. Lewis, 328 So.2d 75 (La.1976). Rather, distribution may be accomplished by the imposition of a third party.

In the instant case, the defendant delivered a controlled dangerous substance through the help of the third party, Associated. They in turn transferred the package for Gentry to DHL within Jefferson Parish. The trial court could reasonably conclude that the delivery to and the presence of the cocaine in Jefferson Parish constituted a “continuing crime”, thus Jefferson had venue. LSA-CCrP Article 611.

Jurisprudence has held that although venue must be proved by the State to the trier of fact beyond a reasonable doubt, on a pre-trial motion the trial judge is not required to find that the crime was committed by this evidentiary standard, but only that venue is proper by a preponderance of the evidence. State v. Frank, 355 So.2d 912 (La.1978).

Here, the State has satisfied its burden in proving venue in this pre-trial motion by a preponderance of the evidence. It is logical to conclude that a person is still committing and carrying out the act and intent of distribution, when he deposits contraband with a courier for transport overseas. It is impractical and legally unsound to limit the State’s prosecution only to the two geographic points of shipment and arrival. The fact that the courier is or is not aware that his actions are aiding criminal activity does not exculpate the distributor. His intent to distribute the illegal material is still developing and his guilt is not neutralized simply because he is not in physical possession of the drugs. Thus the crime is a continuous one and is not complete until the drugs reach their final destination. If the package is intercepted and inspected and drugs are discovered, it is also logical to conclude that jurisdiction or venue is proper for this continuing crime at the point of interception. U.S. v. Brunty, 701 F.2d 1375 (11th Cir.1983); U.S. v. Davis, 666 F.2d 195 (5th Cir.1982); U.S. v. Godwin, 546 F.2d 145 (5th Cir.1977); U.S. v. Barnard, 490 F.2d 907 (9th Cir.1973); U.S. v. Jackson, 482 F.2d 1167 (10th Cir.1973), cert. denied, 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 222 (1974).

The activities in the above cited cases all involved importation of a narcotic drug. In the present case we have exportation. This is simply a distinction without a difference. Under the reasoning of these federal cases, the alleged distribution of cocaine by Gentry from New Orleans to France was a continuing offense that would not be completed until it reached its final destination in France. Thus venue would be proper in this case in Orleans Parish, where it was placed for delivery, and in Jefferson Parish, a distribution point along the way to its place of final destination.

Motion to Suppress the Evidence

The defendant relies on La. Const. Art. 1, § 5 to support his position that warrant-less searches are allowable only in four instances.

1. Searches pursuant to a standard inventory search.
2. Searches incident to a lawful arrest.
3. Consensual searches.
4. Searches undertaken under exigent circumstances.

The fourth amendment of the U.S. Constitution also protects against unreasonable searches and seizures. This amendment has long been interpreted to protect individuals from unreasonable governmental actions. Its primary purpose is to restrain governmental authorities. It was not .intended to protect against private trespasses. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); U.S. v. De La Fuente, 548 F.2d 528 (5th Cir.1977); U.S. v. Jacobsen, — U.S. -, 104 S.Ct. 1652, 80 L.Ed. 85 (1984). Hence, the “search” in this case conducted by the employees of DHL was not subject to the limitations of the Fourth Amendment because they were not governmental agents or employees. Nor can it be said that in the particular case that the protections of the Louisiana Constitution were violated. The facts show conclusively that the initial search of the package was reasonable. In the first place, prior to sending the package, Gentry signed an airway bill furnished by DHL. On the front of that bill, in a visible black square just below the shipper’s signature line, the following informative language was printed: “All incident transportation services provided hereunder are subject to the terms and conditions of carriage printed on the reverse side of this airway bill.”

On the back of this bill of lading, the first sentence of paragraph 6 provided:

“DHL reserves the right to inspect the documents and parcels consigned by its customers to insure that all documents are capable of carriage to the State or Country or destination(s) within the standard operating procedures, custom procedures and handling methods of DHL.”

According to Mr. Schoenbaechler, objects other than documents require much more paper work by DHL to satisfy French customs regulations. DHL employees in Ken-ner became alarmed when they handled the package, felt a hard object, and, in their experienced opinion, thought that the package contained something other than paper. It was therefore reasonable for them to open the package, ultimately exposing the drugs to view.

As for any subsequent Fourth Amendment violations by the Kenner Police, in this particular case and under these particular facts, we agree with the holding of the court of appeal. Once the private search by the DHL employees revealed the cocaine, the airway bill and Mr. Gentry’s personal check, the subsequent search by the police did not violate any legitimate expectation of privacy that would trigger a violation of the Fourth Amendment. U.S. v. Jacobsen, supra; State v. Gentry, 450 So.2d 773 (La.App. 5th Cir.1984).

Continuances

The defendant argues that the judge was in error in allowing the State twice to continue his pretrial motions.

The granting or not of a continuance is within the sound discretion of the trial judge. State v. Long, 408 So.2d 1221, 1225 (La.1982); State v. Barrios, 425 So.2d 980, 983 (La.App. 5th Cir.1983).

The record does not show that Gentry indicated any objection to the continuance. Nor does he now claim any prejudice resulting from the delay. Therefore, since he has shown no abuse of discretion or prejudice, this assignment of error is without merit.

Conclusion

Neither the trial judge nor the court of appeal were clearly wrong in failing to grant the motion tó quash for improper venue or in refusing to suppress the identification of the defendant or the evidence seized. This case should be remanded to the district court for trial on the merits.

REMANDED.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I subscribe to the majority’s finding that the transfer of possession or control, i.e., distribution, is not limited to an actual physical transfer by the defendant personally, and that, as a consequence, distribution in this case, as alleged, was accomplished by the imposition of a third party in Jefferson Parish at a point of transhipment (distribution). I am not certain, and it is unnecessary in this case to decide, or suggest, as the majority apparently does, that the state’s prosecution from the standpoint of venue should not be limited to the two geographic points of shipment and arrival. If a courier takes the defendant’s drugs in New Orleans and carries them by car for delivery, or distribution, in Miami, I am not at all convinced that distribution has taken place in the states other than Louisiana and Florida through which the courier, or defendant’s agent, has passed. For these reasons I respectfully concur.

      . § 967. Prohibited acts — Schedule II; penalties
      A. Manufacture; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
      (1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule II;

      . La. Const. Art. 1,
      Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

      . U.S. Const. Amendment IV:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


author: CALOGERO, Justice. DIXON, Chief Justice

text:
    Marshall W. ANDERSON and Louise G. Anderson v. W.A. McCARTY.
    No. 84-C-0568.
    Supreme Court of Louisiana.
    Jan. 14, 1985.

      James D. Caldwell, Culpepper, Teat, Caldwell & Avery, Jonesboro, for applicant.
    J.P. Mauffray, Jr., Jena, for respondent.
   CALOGERO, Justice.

We granted writs in this case to review the trial judge’s granting a defense motion for directed verdict at the close of plaintiffs’ case in this judge tried lawsuit. An accident with resulting property damage and personal injury occurred when plaintiffs’ automobile struck a cow on U.S. Highway 84, just outside of Winnfield, Louisiana on September 15, 1981.

The pertinent contested issue was whether the defendant W.A. McCarty owned the cow. In this respect two distinct evidentia-ry matters have drawn the attention of the Court. What, if any, were the markings used by defendant on his cattle? And were defendant’s markings found on the cow which was killed in the automobile collision?

Defendant’s trial testimony indicated that at the time of the accident he maintained at least sixty head of cattle, which had access to grazing on the property adjoining the area of Highway 84 where the accident occurred. With respect to any identifying markings used by the defendant on his cattle, defendant testified that years ago he had a brand registered in Baton Rouge, which had long since expired, and a stock mark, recorded at the Winn Parish Courthouse about 1930, which he assumed was taken off the records since he had “quit marking.” Defendant denied ever registering any other marks or brands or authorizing anyone else to do so on his behalf. However, defendant also testified that his son, Howard A. McCarty, his daughter, Geraldine Taylor, and his grandsons “tend to” the cattle since he is no longer able to do so. In fact, he asserted that these relatives have an ownership interest in the cattle, which are not really considered “any person’s cows just ours.”

Plaintiff on the other hand, introduced a certified copy of a page from the Winn Parish Clerk of Court’s brand book, which bore an entry signed by Howard A. McCarty. The entry, recorded July 18, 1979, reported the identifying stock mark for the cattle of W.A. McCarty (defendant here) to be “Crop off Right Ear — Under-slope in Left Ear.” While there may be no statutory requirement that such brand book be maintained by the parish clerk of court and no statute which, as in the case of the Livestock Brand Commission, La. Rev.Stat. 3:731 et seq., recites that a certified copy of a brand or mark registered under its provisions “shall be prima facie evidence of the ownership of the animal by the person whose brand or mark it may be,” (La.Rev.Stat. 3:743), nonetheless, the document is at least a written acknowl-edgement by Howard A. McCarty, defendant’s son, that the stock mark of defendant W.A. McCarty was as described. And there was no valid objection to its introduction. Certainly, the brand book supports the conclusion that the defendant, or a member or members of his family marked or were to mark the “partnership ... cows” with a crop off the right ear and an underslope in the left ear.

Relative to the marks on the cow involved in the collision with plaintiff’s automobile, Trooper Cotton testified at trial that the markings consisted of “a crop on the right ear with a underslope on the bottom portion,” a single ear marking. His proffered accident report, however, described “a young heifer with a crop on right ear and an upper slope on lower portion of left ear,” a double ear marking. As concluded by the dissenting judge in the Court of Appeal, the description contained in the accident report essentially matched that filed relative to W.A. McCarty’s cattle in the Winn Parish brand book.

Neither this accident report nor further testimony from the trooper to correct his original misstatement, however, was permitted in evidence. When counsel for plaintiff sought to clarify the trooper’s oral testimony, defense counsel's objection was sustained on the grounds that the questioning was repetitious. Furthermore, the trooper volunteered on cross-examination that his choice of words in the report in describing the cow’s identifying markings was aided by advice from a livestock officer. One Bill Barber recited to Trooper Cotton the words Cotton used in the report. Defense counsel objected to introduction of the report and to any further discussion of the accident report’s description of the cow on the grounds of hearsay and the stock patrolman’s not being called personally as a witness. The trial judge sustained the objection.

After disallowing introduction of the trooper’s accident report, the trial judge declared that the brand book Registration and the trooper’s testimony simply did not coincide, and thus, there was no evidence before the court that defendant owned the cow. While the judge excluded the report on the basis of the hearsay objection, he may have been motivated at least in part by a belief that the trial testimony and the report were identical with regard to the description of the brand markings. If that were his belief, or assumption, he was incorrect, for the report was distinctly different from the testimony. The Court of Appeal more than likely perceived the significance of the report to plaintiffs case, but affirmed the trial court’s exclusion nonetheless. They reasoned that the report did not qualify as past recollection recorded.

Upon our review of the law and the evidence, we conclude that the report should have been admitted. It does meet the requirements of the past recollection recorded exception. The elements to be considered in determining the admissibility of past recollection recorded include:

(1) the witness’s first hand knowledge of the event;
(2) recordation at or near the time of the event while the witness had a clear and accurate memory of it;
(3) lack of present recollection of the event;
(4) the witness’s vouching for the accuracy of the report.

C. McCormick, Evidence 712 (2d ed. 1972). The Court of Appeal opinion rejected the past recollection recorded exception to the hearsay rule for the reason that the trooper, in their view, was unable to vouch for the accuracy of the description contained in his report because he was not conversant with the terms of livestock marking.

Although the trooper volunteered that “I wouldn’t know a crop from an upperslope or anything else,” he is certainly qualified to recognize whether a cow has markings on only one ear or on both ears. On redirect examination, he made it clear that he observed the cow and the markings. The trooper simply relied on the terms provided by an experienced stockman to describe the markings which the trooper himself observed. Trooper Cotton testified, “his terms and what I saw appeared to be the same.” Essentially, then, the trooper testified that he was reporting what he observed, but using the language or terms provided by the stock patrolman.

Even if the trial court’s exclusion of the report were justified by the imprecise argument which accompanied its tender the report should have been admitted when offered anew by the plaintiff after defendant, on cross-examination, again explored the matter of the accident report, its contents and its validity. On redirect, plaintiff was entitled to seek an explanation of statements elicited on cross-examination (La.Rev.Stat. 15:281), statements (or testimony) which confirmed that the substance of the report was an accurate recitation of what the trooper observed at the scene. At this point, the best evidence of what was in the report was the report itself, and the trial court should have permitted its introduction at that time.

We turn now to the law on the motion for directed verdict. Until 1977, the motion for directed verdict did not exist in Louisiana civil procedure. At that time, C.C.P. art. 1810 was added by 1977 La.Acts. 699. It provided:

Art. 1810. Directed verdicts
A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

As enacted, however, C.C.P. art. 1810 did not appear to contemplate the use of a directed verdict in a non-jury trial. La.Act 156 of 1978 amended art. 1810 to provide for its use in just such a situation:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

In 1980, this Court adopted the following test in determining whether or not to grant the motion for directed verdict in a jury trial:

... could reasonable persons, reviewing all the evidence in light most favorable to plaintiff, have reached different eonclu-sions[?]. Breithaupt v. Sellers, 390 So.2d 870 (La.1980).

There has been no case in this Court’s jurisprudence addressing the rule or test for determining whether or not to grant the motion for directed verdict in a judge trial. At least two Court of Appeal decisions have addressed the issue. In Chandler v. Fuqua, 420 So.2d 1348 (La.App. 3rd Cir.1982) and Sevin v. Shape Spa, 384 So.2d 1011 (La.App. 4th Cir.1980) the Third and Fourth Circuits respectively concluded that the judge in a judge tried case may, like his federal counterpart, grant a directed verdict for a defendant at the close of plaintiff’s case, if on weighing the facts presented at that point, he would grant judgment for the defendant, and irrespective of whether plaintiff has presented a prima facie case (or some evidence as to each element required to be proved).

There are, however, contrary resolutions on this issue in the national jurisprudence. Tillman v. Baskin, 260 So.2d 509 (Fla.1972); Rogge v. Weaver, 368 P.2d 810 (Alaska, 1962); Arbenz v. Bebout, 444 P.2d 317 (Wyo.1968).

The Florida Supreme Court in Tillman v. Baskin, supra following the Alaska Supreme Court in Rogge v. Weaver, supra and citing the Wyoming Supreme Court in Arbenz v. Bebout, supra has rejected the resolution of the federal courts in the interpretation of the Federal Rule of Civil Procedure 41(B), the counterpart to Florida’s Rule 1.420.

The Florida Supreme Court stated:

Federal courts apparently feel justified in permitting their trial judges to weigh evidence following the presentation of a plaintiff’s prima facie case, because such a holding enables judges to “expedite the trial of cases,” and “dispose of cases at the earliest opportunity.” Bach v. Friden Calculating Mach. Co., 6th Cir.1945, 148 F.2d 407, 410. Their interpretation of the rule regarding involuntary dismissals, however, has not been universally accepted. Professor Roscoe Steffen of the University of Chicago Law School has called it “a misbegotten offspring of an unseemly desire for speed and hurry [which] has no place in our system of justice.” 27 U. Chicago L.Rev. 94, 125 (1959). The Supreme Court of Alaska also has rejected the federal interpretation, stating:
“Where plaintiff’s proof has failed in some aspect the motion should, of course, be granted. Where plaintiff’s proof is overwhelming, application of the rule is made easy and the motion should be denied. But where plaintiff has presented a prima facie case based on unimpeached evidence we are of the opinion that the trial judge should not grant the motion even though he is the trier of the facts and may not himself feel at that point in the trial that the plaintiff has sustained his burden of proof. We believe that in the latter situation the trial judge should follow the alternative offered by the rule wherein it is provided that he ‘ * * * may decline to render any judgment until the close of all the evidence’, and deny the motion. If, after denial of the motion, the defendant declines to present any evidence, the judge must, of course, then exercise his own judgment in applying the law to the facts presented and rule on the motion and decide the case.” Rogge v. Weaver, Alaska 1962, 368 P.2d 810, 813. Accord, Arbenz v. Bebout, Wyo.1968, 444 P.2d 317.

It is not necessary to the resolution of this case in its present posture to decide this issue. The trial judge’s grant of motion for directed verdict was prompted by an erroneous exclusion of the trooper’s report. Without the report there was no proof of any sort before the court that the markings on the dead cow corresponded with the identifying marks registered to the defendant in the Parish Brand Book. Therefore, the trial judge has not had the opportunity to apply either standard— whether “reasonable persons reviewing all the evidence in light most favorable to plaintiff [might] have reached different conclusions” or preponderance of the evidence — to the entire plaintiff’s case, including the trooper’s report. For this reason the trial court’s granting of the motion for directed verdict cannot be permitted to stand.

Decree

For these reasons we reverse the trial court and Court of Appeal judgments dismissing plaintiff’s suit with prejudice and remand to the trial court for resumption of trial.

REVERSED, REMANDED TO DISTRICT COURT.

DIXON, C.J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

In the early evening hours of November 15, 1981, plaintiffs Marshall W. Anderson and Louise G. Anderson were driving in a westerly direction on U.S. Highway 84 just outside of Winnfield when the 1979 Ford LTD in which they were riding struck a cow allegedly belonging to defendant W.A. McCarty. According to the testimony of Mr. Anderson the cow ran onto the roadway from the left shoulder and proceeded into the path of the automobile. As a result of the collision, the automobile sustained severe damage to the front end and, according to the petition, Mr. Anderson suffered an acute lumbo sacral strain.

Plaintiffs sued defendant for the damage to their property and for personal injuries. Liability was predicated on defendant’s alleged breach of R.S. 3:2803 and of Civil Code Arts. 2315, 16, 17 and 21. At trial, defense counsel moved for a directed verdict at the close of plaintiffs’ case. The defense argued that plaintiffs failed to prove that Mr. McCarty was the owner of the wandering cow. The trial court granted defendant’s motion and denied plaintiffs’ subsequent motion for a new trial. Plaintiffs unsuccessfully appealed both adverse rulings (Anderson v. McCarty, 445 So.2d 113 (La.App.1984)), and we granted writs (449 So.2d 1352 (La.1984)).

The central issue on appeal is whether a directed verdict was proper, given the evidence adduced from plaintiffs’ case. In a case tried before a judge, a directed verdict should be granted only where the plaintiff has shown no right to relief at the close of his case. The plaintiff must establish his claim by a preponderance of the evidence. “Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, such proof shows that the fact or cause sought to be proved is more probable than not.” Prestenbach v. Sentry Insurance Co., 340 So.2d 1331, 1334 (La.1976); Marcotte v. The Travelers Insurance Co., 258 La. 989, 249 So.2d 105 (1971).

At the close of plaintiffs’ case in the instant matter, the following evidence had been elicited.

The defendant admitted on cross-examination that he had been a cattleman for a number of years and owned approximately eighty head of cattle at the time of the accident. He also testified that although he did not own the land adjacent to the site of the accident, the owner of the land did in fact allow him to graze his cattle on the land.

Plaintiffs also called Trooper Donald Cotton of the Louisiana State Police. Trooper Cotton investigated the accident and prepared a written accident report. The key portion of his trial testimony related to his observations of certain markings on the cow’s ears. Defendant’s stock mark was registered in the office of the Clerk of Court for Winn Parish as “crop off right ear — underslope in left ear.” Defendant denied that he had registered such a marking. Trooper Cotton testified on direct examination that he observed “what they call a crop on the right ear with a under-slope on the bottom portion ... [of] that same ear.” This testimony was at variance with the accident report wherein Trooper Cotton described the markings as “crop on right ear and an upperslope on lower portion of left ear.” (Emphasis added).

It was at this point that plaintiffs’ troubles arose. Plaintiffs’ counsel gingerly tried to point out to Trooper Cotton that his testimony contradicted his accident report. Defense counsel launched a barrage of objections. The trial court sustained an objection to the line of questioning as being repetitious, and plaintiffs’ counsel was forced to go forward.

Plaintiffs’ counsel then tried to introduce the accident report as substantive evidence, countering defendant’s hearsay objection with the contention that the past recollection recorded exception to the hearsay rule was applicable. The trial judge refused to admit the report, whereupon plaintiffs rested.

Plaintiffs chief argument to this court is that the lower courts erred in holding the accident report inadmissible.

The trial court sustained the hearsay objection, giving no reasons. The court of appeal ruled that the report was inadmissible since Trooper Cotton could not vouch for the accuracy of the descriptive terms used in the report. Apparently, Trooper Cotton, being unfamiliar with stockman’s terminology, had used descriptive terms given to him by an officer of the stock patrol who was also present at the scene of the accident. Therefore, although Trooper Cotton had personally observed the markings, the statement in the report was in fact the statement of the stock patrolman as recorded by Trooper Cotton.

Plaintiffs contend that if the report had been admitted, there would have been sufficient evidence to establish ownership of the cow in the defendant.

It is not necessary to rule on the admissibility of the accident report, for even if the report had been admitted, plaintiffs would not have presented sufficient evidence to prove ownership of the cow.

Revised Statutes 3:731 et seq. created the Livestock Brand Commission and provides a central registry for the recordation of livestock brands and markings. R.S. 3:743 states that “in all suits, ... wherein the title to animals is at issue, ...” a certified copy of a brand or mark “shall be prima facie evidence of the ownership of the animal by the person whose brand or mark it may be.”

Plaintiffs, however, produced no such evidence of recordation at trial. The recordation plaintiffs relied upon was a “brand book” provided by the Winn Parish Clerk of Court as a convenience to members of that parish. We have found no authority that the recordation in a “brand book” gives rise to any presumption of ownership.

Mr. and Mrs. Anderson argue that ownership can be proved by circumstantial evidence, citing Bunkie Funeral Home, Inc. v. McNutt, 414 So.2d 1263 (La.App.1982). However, plaintiffs’ evidence does not prove defendant’s ownership of the cow by a preponderance of the evidence.

There is no evidence, for example, whether defendant was the only cattleman whose cattle grazed near the accident site. As mentioned previously, defendant was not the owner of the land adjacent to the accident site but was allowed by the owner to graze his cattle on the land. There is no evidence that other cattle owners did not have similar privileges.

The evidence regarding the markings on the cow’s ears is also unclear. Not only were photographs taken of the cow’s ears, the ears themselves were amputated and retained by the state police. Plowever, the ears were lost at troop headquarters, and Trooper Cotton neglected to bring the photographs to the trial in spite of a subpoena duces tecum ordering him to do so. Plaintiffs’ counsel did not force compliance with his subpoena; the photographs were therefore never introduced into evidence. Further, the stock patrolman whose observations were recorded in the accident report was not even called to testify in support of plaintiffs’ case.

Plaintiffs’ final argument is that their motion for a new trial under C.C.P. 1973 should have been granted.

“A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” C.C.P. 1973.

A new trial should be granted “when the trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice.” Lamb v. Lamb, 430 So.2d 51, 53 (La.1983). The trial judge is given a broad grant of authority, and his ruling should not be disturbed absent a clear abuse of his discretion. There is no such abuse in the case before us.

Accordingly, I dissent from the majority opinion, believing the rulings of the lower courts should be affirmed.

      . The Court of Appeal affirmed the judgment of the district court after appeal by plaintiffs. 445 So.2d 113 (La.App. 2d Cir.1984).

      . Liability in this lawsuit was predicated on defendant’s alleged breach of R.S. 3:2803 and of Civil Code Articles 2315, 2316, 2317, and 2321. R.S. 3:2803 provides "No person owning livestock shall knowingly, willfully, or negligently permit his livestock to go at large upon the following public highways of the state: ... (10) U.S. 84 ... Jet. U.S. 71, at Clarence, to Jct.U.S. 65 at Ferriday.”

      .A certified copy of the record indicated that the stock mark had been voided in June, 1979, by Aubrey McCarty, also known as Howard A. McCarty. Howard A. McCarty is W.A. McCarty's son.

      . This stock mark was cancelled on November 25, 1981, by Howard A. McCarty, ten days after this accident occurred, according to plaintiffs exhibit #8, a certified copy of a page of the brand book, found on page 40 of the record.

      . Counsel for defendant neither protested the form of the evidence (i.e., neither sworn testimony nor testimony in deposition form) nor that it constituted impermissible hearsay. He protested essentially that his client took issue with the substance of the offering, by stating
      if he wants to introduce the document as being ... as being public records, that is fine. But the witness has already testified, you know, that he didn’t ... he didn't do that and he didn’t authorize the person who apparently did it to do it.
      Defendant’s protest went not to admissibility but to the weight to be given the instrument in the trial court’s resolution of fact in the case.

      .There is little difference between the brand book description of an "under slope in left ear” and the accident report description of an "upper slope on lower portion of left ear.”

      . Testimony from the trial transcript included these comments by the judge:
      And I asked the Trooper myself when he was on the stand if what he saw matched up with what he put on his report and he said it did. Same ear markings were in the upper and lower part of the ear. Even if I accept the full evidence of what cows Mr. McCarty owns from the brand registration or mark registration that is filed in evidence, they don’t match. Trial transcript at 112.

      . This is the only requirement that might arguably be lacking in this case. As we review the testimony, however, it seems fairly clear that the trooper did not have present recollection but was reciting what he believed to be in the report, a belief that was mistaken.

      . 1983 La.Act 534 transferred former C.C.P. art 1810 B so that it became art. 1672 B (in a chapter of the Code of Civil Procedure relative to Dismissal) since art. 1810 was included in the section of the code dealing alone with jury trials.

      . "No person owning livestock shall knowingly, willfully or negligently permit his livestock to go at large upon the following public highways of the state: ... (10). US 84 Jet. US 71, at Clarence, to Jct.US 65 at Ferriday.” R.S. 3:2803.

      . "B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence." C.C.P. 1672(B), formerly Art. 1810(B).

      . The Winn Parish Registry shows that the marking was registered by Howard A. McCarty, defendant’s son whom the defendant admitted assisted him with his cattle. The marking presumably registered to defendant, but canceled after the accident, was “split in left ear, under-slope in right ear."


author: PER CURIAM. LEMMON, J.,

text:
    STATE ex rel. Wendall A. MARTIN v. STATE of Louisiana.
    No. 83-KH-2016.
    Supreme Court of Louisiana.
    Jan. 18, 1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., for defendant.
    Leroy Melton, Elizabeth Cole, Supervising Atty., Tulane Law School Clinic, New Orleans, for respondent.
   PER CURIAM.

Following defendant’s conviction for simple burglary in 1978, La.R.S. 14:62, the state filed a multiple bill seeking enhancement of punishment under La.R.S. 15:529.1, based upon defendant’s plea of guilty in 1972 to manslaughter. La.R.S. 14:31. Subsequently, defendant was adjudicated a second-felony offender and was sentenced to fifteen (15) years at hard labor. On appeal, we affirmed defendant’s conviction and sentence. State v. Martin, 427 So.2d 1182 (La.1983). Thereafter, defendant returned to the trial court where he had entered his 1972 guilty plea and filed an application for post-conviction relief, La.C. Cr.P. art. 924, et seq., on grounds that he had not been advised of his rights under Boykin v. Alabama, 395 U.S. 328, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial court granted him relief on March 14, 1983 and set the 1972 conviction aside. Defendant then filed a second application for post-conviction relief in the trial court where he had been convicted in 1978, contending that the Boykin defects in his 1972 plea had rendered the subsequent multiple offender proceeding invalid. The trial court denied him relief on July 1, 1983, and we granted defendant’s application for supervisory writs to review the correctness of that ruling. We now reverse.

The transcript of defendant’s 1972 guilty plea, as well as the guilty plea form used in that proceeding, fully support the trial court’s determination in 1983 to set that plea aside. Defendant had not been advised of his right to a jury trial, right to confront his accusers, or his privilege against self-incrimination, as required by this Court’s Boykin standard. State v. Cressy, 440 So.2d 141 (La.1983); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972). A guilty plea obtained in violation of an accused’s constitutional rights is invalid, and may not serve as a basis for enhancing punishment under La.R.S. 15:529.1. State v. Lynch, 441 So.2d 732 (La.1983); State v. Cressy, supra; State v. Lefevre, 419 So.2d 862 (La.1982). Defendant’s failure to raise the Boykin claim in the 1978 multiple offender proceeding may have barred review of the merits on direct appeal in State v. Martin, supra. Cf., State v. Holden, 375 So.2d 1372 (La.1979). It did not, however, preclude defendant from challenging the constitutionality of his 1972 guilty plea in the court where he entered it and then moving for relief in the court where he was convicted of a subsequent offense in order to determine the validity of the enhanced punishment there. La.C.Cr.P. art. 925; State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La.1982); State v. Linkletter, 345 So.2d 452 (La.1977).

LEMMON, J.,

concurs. The 1972 manslaughter plea should not have been set aside, but the state did not seek review of that ruling and in fact acquiesced by immediately accepting a new plea with a sentence concurrent to the one imposed in the present case. The state, therefore, has no complaint about the collateral consequences in this case resulting from its actions and inactions in the manslaughter case.

      . Defendant’s first conviction came in Section "J" under docket number 244-702, Orleans Parish Criminal District Court. His second conviction was also in Orleans Parish, in Section “C", under docket number 263-888. Following his conviction in Section "C”, the state filed its multiple bill and that section of court adjudicated defendant a second offender in 1978.