author: JOANOS, Judge.

text:
    Margaret A. GRIFFIN, Orian P. Wells, Jr. and J. Emmett Smith Co-Trustees of the Testamentary Trust of Frederick L. Griffin, deceased, Appellant, v. Joan M. GRIFFIN, as Guardian for the Property of Thomas Lanier Griffin, Minor Beneficiary of the Testamentary Trust of Frederick L. Griffin, deceased, Appellee.
    No. AY-310.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1985.

      Edward E. Hedstrom of Hedstrom & Smith, Palatka, for appellant.
    Nancy E. Yenser of Salter, Feiber & Yenser, Gainesville, for appellee.
   JOANOS, Judge.

This is an appeal from a final order requiring disbursements from a testamentary trust established by Dr. Frederick L. Griffin. Dr. Griffin is survived by six children, three born of his first marriage and three born of his second marriage. Appellee, Dr. Griffin’s second wife and guardian of his minor child Thomas Lanier Griffin, filed a petition in Alachua County Circuit Court seeking (1) an annual accounting of the trust, (2) an order compelling the trustees to pay back into the trust moneys allegedly improperly paid to non-income beneficiaries, (3) an order directing the trustees to cease making monthly payments to non-income beneficiaries, (4) an order awarding petitioner the costs of the action, and (5) an order granting “such other and further relief as the Court may deem just and proper.”

After hearings were held on appellee’s petition, the trial court found that certain disbursements by the trustees to non-income beneficiaries (sons of Dr. Griffin’s first marriage) were improper, because contrary to the settlor’s intent. The court was of the opinion, however, that the disbursements were made in good faith, and were not prejudicial as there was sufficient trust res to comply with the settlor’s intent to provide for the support of the minor income beneficiary, Thomas Lanier Griffin, and to provide higher education expenses of the income beneficiary, John Michael Griffin. Therefore, the trial court directed that the payments made to Dr. Griffin’s older sons, who are non-income beneficiaries, would be considered an advancement of the final distribution provided for in the trust as to the respective interests of Frederick L. Griffin, Jr. and Joseph Garland Griffin, and declined to direct the trustees to repay personally these sums of money to the trust. The trial court also directed the trustees to make payments to appellee for the benefit of the minor income beneficiary Thomas Lanier Griffin, to provide for the higher education expenses of the income beneficiary John Michael Griffin, and to render an accounting to the beneficiaries.

The trustees filed a motion for rehearing, urging error in those portions of the order directing payments to Thomas Lanier Griffin and John Michael Griffin. On rehearing, the trial court reversed that portion of the order directing the trustees to make payments to John Michael Griffin, because John Michael Griffin is sui juris, was not a party to the suit, and did not reside in Alachua County, where the suit was filed.

The trustees have appealed that portion of the order directing them to provide for the support, maintenance and education of Thomas Lanier Griffin, alleging that this issue was not framed by the pleadings and the identical issue had been raised previously in other pending litigation.

Appellee, guardian of Thomas Lanier Griffin, has cross-appealed (1) the trial court’s denial of her petition that the trustees be required to repay personally to the trust the sums expended on behalf of Dr. Griffin’s older sons, and (2) the trial court’s decision not to order the trustees to make payments from income of the trust to John Michael Griffin, an income beneficiary, for his education. We affirm in part and reverse in part.

When Dr. Griffin died on December 27, 1979, his three older children were ages 25, 23, and 20 respectively; and the children of his second marriage were ages 17, 16 and 12. No children were born of Dr. Griffin’s third marriage to Margaret A. Griffin Gregory. Margaret A. Griffin Gregory is a co-trustee and co-appellant in this suit.

The trust paragraph applicable to this case provides:

(6) The foregoing trust estate shall be held administered and disposed of as follows:
(a) The net income of this trust shall be paid to or applied for the maintenance, education or support of my children, DAVID LEE GRIFFIN, JOHN MICHAEL GRIFFIN and THOMAS LANIER GRIFFIN, at such times and in such proportions as the Trustee shall deem proper in his absolute discretion, but with due regard to any principal distributions made hereunder. In the event the net income shall be insufficient to provide any of said children with adequate maintenance, education or support, the Trustee shall invade principal for this purpose and such invasion shall be made according to the needs of said children rather than according to any pro rata scheme of distribution. The Trustee is authorized to accumulate income in this trust to the extent that the same is not required for the payments and purposes hereinabove specified and any such accumulated income may be added to the corpus of the trust and invested or reinvested in the same manner as the original corpus. As a guide to my Trustee, but without any intent to restrict his discretion, it is my purpose that any of said children who desire to receive a higher education should be given such financial support as the trust is reasonably able to provide in order to allow said child or children to complete such higher education as they may desire. It is my primary intent to provide for the health, maintenance, support and education of my three youngest children, DAVID LEE GRIFFIN, JOHN MICHAEL GRIFFIN and THOMAS LANIER GRIFFIN; however, my Trustee is also authorized in the event of an emergency or hardship to pay or apply income or principal from this trust for the health or maintenance of my mother, VIRGINIA WILKIE, any of my older children, MARJORIE ELAINE GRIFFIN, FREDERICK L. GRIFFIN, JR. and JOSEPH GARLAND GRIFFIN, my wife MARGARET A. GRIFFIN, my aunts, DORES FAIR and MARY SMITH, and my cousin NANCY FAIR.

Dr. Griffin’s will was admitted to probate on January 29, 1980. On December 17, 1981, appellee requested an annual accounting pursuant to the provisions of Section 737.303(4), Florida Statutes. On January 28, 1983, appellee filed Objections to Partial Trust Accounting, Petition for Complete Trust Accounting and Enforcement of Trust Provisions and Enforcement of Sanctions. Then on April 21, 1983, appellee filed an amended petition and objections. Paragraphs 12 and 13- of this amended petition alleged:

12. Said Accountings reflect monthly payments to Respondents, FREDERICK L. GRIFFIN, JR. and JOSEPH G. GRIFFIN, beneficiaries, who are not income beneficiaries of the Trust, but are authorized to receive funds from the Trust only in the event of “emergency” or “hardship” as provided by paragraph 4(6)(a) of the Last Will and Testament of Frederick L. Griffin. The Trust includes no provision for said monthly payments from the income of the Trust Assets to beneficiaries other than John, Thomas or David Griffin.
13. Said monthly payments to non-income beneficiaries of the Trust are depleting the income and interest of the Trust and are prejudicial to the interests of the Petitioner’s ward and other income beneficiaries.

On February 12, 1983, the trustees filed a motion to dismiss or transfer the cause to Putnam County, stating as grounds therefor that (1) the will was admitted to probate in Putnam County and probate was still pending; (2) the trust was registered in Putnam County; (3) appellee had invoked the jurisdiction of Putnam County by filing a petition to require a trust qualification petition, and by filing petition to require trustees to pay reasonable support for beneficiaries; and (4) Putnam County is the county of residence of two of the three trustees.

At hearing on appellee’s petition, counsel for the trustees objected to questions from opposing counsel on, the subject of payments to the income beneficiaries. Trustees’ counsel maintained that the matter was not an issue in the case, and that a suit was pending in Putnam County on this particular issue. Counsel for appellee took the position that the issue of the impropriety of payments to the non-income beneficiaries required the court to consider also the question of payments to the income beneficiaries. The court sustained the objection, but cautioned that the ruling would be reversed upon a showing that the trustees made payments after July 1983 to other than the income beneficiaries.

Evidence was adduced that the trustees had made payments of ⅝ $150.00 monthly to Frederick L. Griffin, Jr. and Joseph Griffin during the time period that each young man was attending college. Margaret A. Griffin Gregory, co-trustee, testified that the payments had been made on the basis of the hardship provision of the trust, as perceived by the trustees. When asked to explain the basis of the hardship, she stated:

They, neither one of the boys, could afford to buy groceries. Fred, Jr. had to move out of his apartment, move in with his grandmother. He didn’t have a car and neither — sometimes the boys would not even have enough to eat. And this, to me, was a hardship.

The trustees ceased making payments to Fred, Jr. and Joseph in March 1983 because the two older sons advised the trustees they needed no further help. At that time, both young men had withdrawn from school and had taken full-time jobs.

After some testimony concerning investment of the trust funds, counsel for appel-lee again sought to introduce testimony concerning payments to the income beneficiary. Following an objection from the trustees’ counsel, the court asked whether the issue of present payment to the income beneficiary was before the court. Counsel for appellee again contended that it was an issue, apparently basing this position on the premise that payment to the non-income beneficiaries was prejudicial to the income beneficiaries. The trial judge advised that he would review the pleadings and if he found the issue had not been pled, he would not consider it in any judgment entered in the case.

In an order filed November 10, 1983, the court found, among other things, that the trustees improperly made monthly payments to Frederick Griffin, Jr. and Joseph Griffin, since the “payments were neither for emergency or hardship, but were strictly for educational expenses of the non-income beneficiaries.” The court ordered that these payments were to be considered as advancements, to be deducted from the share of each at the final distribution of the trust res.

The trustees filed a motion for rehearing, challenging those portions of the court’s order which directed the trustees to make payments to appellee for the “health, support, maintenance and education of the minor income beneficiary, Thomas Lanier Griffin;” and to provide for the higher education expenses for the income beneficiary John Michael Griffin. After hearing arguments of counsel, the court granted the motion with regard to education expenses for John Michael Griffin, on the ground that “John Michael Griffin is not a party to this suit, is sui juris, and does not reside in Alachua County.” The court denied the motion with regard to the minor income beneficiary, finding “the evidence, pleadings which may be amended to conform therewith, and the immediate past conduct and conflict of interest involved herein necessitate this [ruling] on behalf of the Minor income beneficiary.” This appeal and cross-appeal followed.

The first issue raised for our determination is whether the trial court erred in admitting over timely objections, evidence on an issue not framed by the pleadings; and then in rendering judgment on that issue. The law is clear “that issues in a cause are made solely by the pleadings.” Hart Properties, Inc. v. Slack, 159 So.2d 236, 239 (Fla.1963). Once the issues have been fixed by the pleadings, they “may be changed only by (a) stipulation of the parties, (b) consent or acquiescense of the parties, (c) motion and order, or (d) by amendment express or implied to conform to the evidence.” Provident National Bank v. Thunderbird Associates, 364 So.2d 790, 794 (Fla. 1st DCA 1978).

The trustees maintain, and the record so reflects, that the appellee’s amended petition does not request a determination of the trustees’ obligations to Thomas Lanier Griffin under the terms of the trust. Rather, the petition merely alleged that the trustees had violated their duties in two respects — first, in allegedly failing to render accountings as required by law, and second, in making payments to non-income beneficiaries in violation of the terms of the trust. The amended petition does not assert, either expressly or by reasonable implication, that the appellee was complaining that the trustees had failed to make payments to the income beneficiaries. Thus, there is no merit in appellee’s suggestion that paragraph one of the amended petition adequately raised this issue. This paragraph contains only a general reference to “enforcing the provisions of a trust,” and is therefore too vague to fulfill the notice function served by the pleadings.

Florida Rule of Civil Procedure 1.190(b) provides in relevant part—

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings....
If the evidence is objected to at trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence' will prejudice him in maintaining his action or defense upon the merits, (emphasis supplied)

That portion of the trial court’s order directed to this issue implicitly placed ap-pellee on notice that a motion to amend the pleadings would be entertained by the court. The record before us indicates that no such motion to amend the pleadings was ever made. The record does reflect, however, that counsel for the trustees raised timely objections to efforts to interject evidence on the issue of payments to income beneficiary Thomas Lanier Griffin, on the ground that he was not prepared, due to lack of notice in the pleadings that appellee would seek to litigate this issue, and on the additional ground that the trustees had filed a declaratory judgment action in Putnam County Circuit Court seeking resolution of this issue. In the absence of a motion to amend the pleadings, the trial court erred in ruling on an issue that had not been raised in the pleadings and to which timely objections alleging prejudice had been made. Linder v. Combustion Engineering, Inc., 342 So.2d 474 (Fla. 1977); Darrell Swanson Consolidated Services v. Davis, 433 So.2d 651 (Fla. 1st DCA 1983).

On cross-appeal, the appellee alleges first that the trial court erred in failing to hold the trustees personally liable for sums paid from the trust to the settlor’s two older sons. The trial court found that the $150.00 monthly payments to Frederick and Joseph Griffin were improper, since the applicable section of the trust document limited disbursements to non-income beneficiaries to emergency or hardship. In the view of the trial court, the evidence failed to demonstrate “any malice or lack of good faith in the actions of the Trustees in improperly making said payments,” therefore the court held the trustees should not be required to repay the trust personally the sums of money expended to the non-income beneficiaries.

The trust instrument here under review vests “absolute discretion” in the trustee, or trustees. While such a grant of absolute discretion “does not relieve a trustee from the exercise of good faith or from being judicious in his administration of the trust,” Mesler v. Holly, 318 So.2d 530, 533 (Fla. 2d DCA 1975), the record reflects that the trustees’ decision to make intermittent monthly support payments to Frederick and Joseph Griffin was grounded on a good faith, albeit erroneous, interpretation of the hardship clause of the trust document. This decision does not rise to the level of “willful negligence or gross unfaithfulness to [the] trust,” that would require the trustees to account to the beneficiaries personally for sums expended. Overstreet v. Voorkies, 127 Fla. 333, 173 So. 710, 711 (1937). Nor does the evidence reflect that the trustees failed “to exercise the care and skill of a prudent man in the exercise of the trust,” Hoppe v. Hoppe, 370 So.2d 374, 375 (Fla. 4th DCA 1978), so as to justify holding them personally liable. There is abundant evidence in the record to support the trial court’s finding that the trustees’ monthly payments to non-income beneficiaries were made in good faith and without any malice. We find the trial court did not err in holding the trustees were not personally liable for these disbursements.

As her second issue on cross-appeal, appellee alleges the trial court erred in reversing that portion of the order which directed the trustees to provide for the higher education expenses of the income beneficiary, John Michael Griffin. Appel-lee relies on Section 731.303(2)(b), Florida Statutes (1979), to support her theory that the appellee-guardian’s suit in behalf of the minor beneficiary served to represent the interests of all the income beneficiaries. The case was not litigated in behalf of the other two income beneficiaries, John and David Griffin, each of whom are sui juris. Since the trust document expressly provides that income distribution shall be “at such time and in such proportions as the Trustee shall deem proper in his absolute discretion,” there is a clear potential for competing interests amongst the income beneficiaries. Consequently, appellee’s suit on behalf of the minor income beneficiary cannot be construed as a class suit on behalf of all the income beneficiaries. John Michael Griffin was not a party to this action, therefore the trial court correctly receded from that portion of the prior order requiring the trustees to provide for his higher education expenses.

We reverse that portion of the trial court’s order which directs the trustees to make payments to provide for the health, support, maintenance and education of the minor income beneficiary, since that question was not before the court. We affirm the two issues raised on cross appeal, and remand with directions that an order be entered consistent with this opinion.

Affirmed in part, reversed in part, and remanded with directions.

WIGGINTON and NIMMONS, JJ., concur.

      . The relevant portion of the Order on Motion for Rehearing provides:
      IT IS ACCORDINGLY
      ORDERED AND ADJUDGED that the said Motion be and the same is hereby denied as to paragraph four (4) of the Court’s Order of November 20, 1983, as the evidence, pleadings which may be amended to conform therewith, and the immediate past conduct and conflict of interest involved herein necessitate this paragraph on behalf of the Minor income beneficiary, (emphasis supplied)

      . § 731.303(2)(b), Fla.Stat. (1979), provides:
      Representation. — In proceedings involving estates of decedents or trusts, the following apply:
      (2) Persons are bound by orders binding others in the following cases:
      (b) To the extent there is no conflict of interest between them or among the persons represented:
      1. Orders binding a guardian of the property bind the ward whose estate he controls.
      2. Orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will, in establishing or adding to a trust, in reviewing the acts or accounts of a prior fiduciary, and in proceedings involving creditors or other third parties.
      3. Orders binding, a personal representative bind persons interested in the undistributed assets of a decedent’s estate, in actions or proceedings by or against the estate.


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    Francisca SANTOS, Appellant, v. SCOTT WETZEL SERVICES and Hyatt Orlando, Appellees.
    No. AZ-428.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1985.

      Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, P.A., Orlando, for appellant.
    Bernard J. Zimmerman and Marshall S. Adler of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellees.
   MILLS, Judge.

In this workers’ compensation action, Santos appeals from an order denying compensation. We find the deputy erred in finding Santos did not have an industrial accident, but did not err in denying compensation based on a valid Martin Company v. Carpenter defense. We therefore affirm the order appealed.

Santos, a 55-year-old woman, worked in the employer’s laundry facility beginning in 1981. In applying for the job, she completed a health evaluation questionnaire, answering in the negative the question:

Circle yes or. no and underline the difficulty if you have or have had any of the following: back, neck, or spine pains or disorders.

In fact, Santos had prior back, neck, and spine injuries resulting in operations in 1968 and 1975.

Santcs testified she was at work on 11 March 1984, lifting a bundle of laundry, when she felt a “big crack” in her back. She was afraid to tell her supervisor, Watson, what had happened, so she told another supervisor, Anna White. Anna White told Watson who then asked Santos what was the matter.

Santos testified she told Watson she had injured her back while lifting laundry. She said Watson told her to lie down in the employee’s break room. She rested there approximately 15 minutes, applied hot water to her back, and did light work the rest of the day.

According to Santos, she was unable to go to work the next day due to pain in her back. She said she called the employer’s insurance claims person who referred her to Dr. Bourguignon, an orthopedist.

Watson testified he was responsible for hiring Santos. He stated he would not have hired her had he known of her prior back, neck, and spine problems. Concerning the events of 11 March 1984, Watson was unaware of Santos being injured in a lifting accident. His testimony did reveal, however, that he knew Santos was experiencing back pain on the day in question.

Another supervisor, Steven White, testified Santos never told him she had hurt herself on the job in any manner.

Dr. Bourguignon diagnosed acute thoracic and lumbar strain superimposed on a pre-existent degenerative disc, disease, osteoarthritis of the spine, and post-surgical changes. He opined that the diagnosed strain was, within a reasonable degree of medical probability, causally related to the lifting incident of 11 March 1984. Bour-guignon also stated that a person with Santos’ medical history would be more likely to develop back strain.

Santos’ claim for temporary total, temporary partial, and medical benefits was controverted by the employer/carrier (E/C). They contended Santos did not have an industrial accident on 11 March 1984, and that Santos’ false representations on the health evaluation questionnaire barred her from receiving benefits under the rule of Martin Company v. Carpenter, 132 So.2d 400 (Fla. 1961).

The deputy denied compensation. He found Santos did not have an industrial accident on 11 March 1984 based on Watson’s and Steven White’s testimony that they had no knowledge of Santos having an accident on that date. He also found the claim barred because all elements of the Martin Company v. Carpenter defense were established. .

Where a claimant establishes a logical cause of his injury, the burden then shifts to the E/C to show a more logical cause. Wilhelm v. Westminster Presbyterian Church, 235 So.2d 726 (Fla.1970); Drybala v. Hangar One, Inc., 393 So.2d 660 (Fla. 1st DCA 1981). Santos presented a logical cause — lifting a bundle of laundry — and Dr. Bourguignon causally related the injury to the 11 March 1984 accident. The E/C presented no evidence of alternative causation. Thus, the deputy erred in finding no industrial accident.

In Martin Company v. Carpenter, the Florida Supreme Court stated:

[A] false representation as to physical condition or health made by an employee in procuring employment will preclude the benefits of the Workmen’s Compensation Act for an otherwise compensable injury if there is shown to be a causal relationship between the injury and the false representation and if it is also shown that (1) the employee knew the representation to be false, (2) the employer relied upon the false representation and (3) such reliance resulted in consequent injury to the employer.

132 So.2d at 406.

The necessary causal relationship between the injury and the false representation is a medical relationship between the present injury and the misrepresented physical condition resulting from an undisclosed prior injury. Cycenas v. Sarasota Coca Cola Bottling Co., 440 So.2d 39 (Fla. 1st DCA 1983); Higgins v. Trigil Repair, Inc., 436 So.2d 222 (Fla. 1st DCA 1983). Dr. Bourguignon was asked by counsel for the E/C:

Q. Now, considering the x-ray findings that you have and the history that Santos gave you, would you not agree that this lady with the changes that she’s got in her low back and the operative procedure, that is, Mrs. Santos was more likely to have a back sprain or strain than someone in the general population who had not had the problems with their back that Mrs. Santos did?
A. This is correct.
Q. And that’s with reasonable medical probability?
A. Yes.

This testimony is competent substantial evidence of a causal relationship.

There is competent substantial evidence that Santos knew the representations to be false, the employer relied upon the false representation, and such reliance resulted in injury to the employer. Regarding the question of reliance upon the false representation, there was some evidence which may have supported a finding that the employer had knowledge of the misrepresented physical condition prior to the industrial accident. The deputy, however, did not make such a finding. Watson’s testimony that he would not have hired Santos had he known of her pre-exist-ing condition was competent substantial evidence that the employer relied upon the false representation. Doric Food Co. v. Allen, 383 So.2d 316 (Fla. 1st DCA 1980).

AFFIRMED.

JOANOS and BARFIELD, JJ., concur.


author: PER CURIAM.

text:
    Howard McGEE, Appellants, v. STATE of Florida, Appellee.
    No. BD-64.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1985.
    Howard McGee, in pro. per.
    No appearance for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of the defendant’s Rule 3.850 motion. Grounds which have been or should have been raised in the defendant’s prior direct appeal may not be raised via a Rule 3.850 motion. See Foster v. State, 400 So.2d 1 (Fla. 1981).

AFFIRMED.

ERVIN, C.J., SMITH and NIMMONS, JJ., concur.


author: WIGGINTON, Judge.

text:
    Christy V. HOLMES, a minor, by Dorothy E. HOLMES, her mother and next friend, Appellant, v. Chyrel D. HOLMES, Appellee.
    No. AW-429.
    District Court of Appeal of Florida, First District.
    Feb. 19, 1985.

      Francine Clair Landau of Inman & Landau, P.A., Jacksonville, for appellant.
    Charlene Salgado Haynes, Tampa; and Jack C. Harris, Jacksonville, for appellee.
   WIGGINTON, Judge.

Appellant, Christy Holmes, appeals a final judgment declining to impose a constructive trust on life insurance proceeds of which appellee is the named beneficiary. We reverse.

Christy’s parents, Dorothy E. Holmes and Joseph Holmes, were divorced by final judgment on April 30, 1980. Christy was the only child of the marriage. Pursuant to a stipulation entered into between the parties, in the final judgment of dissolution, the judge ordered:

The husband shall maintain life insurance on himself and shall designate the minor child of the parties irrevocable beneficiary thereof.

The final judgment did not specifically identify the policy to be maintained.

On April 9, 1980, some three weeks prior to signing the stipulation agreement and entry of the final judgment of dissolution, Mr. Holmes changed the beneficiary of a $25,000 policy on his life, which he had carried since 1977, naming his sister, appel-lee, beneficiary. Mr. Holmes died on September 9, 1980. Thereafter, as beneficiary of the $25,000 policy, appellee received those insurance proceeds. Christy, through her mother and next friend, Dorothy Holmes, filed this suit seeking imposition of a constructive trust against appellee on the insurance proceeds based on the provision of the final judgment.

At trial, the attorney who had represented appellant’s mother in the dissolution action testified that he drafted the stipulation agreement between Dorothy and Joseph Holmes at the time of their divorce. By his recollection, the parties were concerned with only one insurance policy in the amount of $25,000. Dorothy Holmes testified that the $25,000 policy in question was the one contemplated by the parties in entering into the stipulation agreement. She stated that she was unaware of any other life insurance policy that Mr. Holmes may have had and she has not received any insurance benefits on behalf of the child as a result of his death.

Appellee presented evidence that a $2,000 policy on Mr. Holmes’ life was also in existence at the time of his death. She also testified that he had purchased a $10,-000 policy on Christy’s life which provided that, upon his death, the premiums would continue to be paid by the company, but Christy would become the owner and the policy would accrue cash value so that by the time Christy reached twenty-one years of age, the policy would have built up an estate of over $9,300 without any cost to Christy. Although the policy on Christy’s life was admitted into evidence, the alleged additional $2,000 policy was not produced.

Appellee defends against the constructive trust by asserting that in Florida a constructive trust may be imposed only in circumstances where the person upon whom the trust is sought to be imposed has breached a confidential relationship and acquired some advantage which she should not retain in equity. Appellee correctly relates that no showing has been made that she breached any confidential relationship or participated in any inequitable conduct to obtain the $25,000 life insurance proceeds. However, in Wadlington v. Edwards, 92 So.2d 629 (Fla.1957), the court declared:

[A] constructive trust is a relationship adjudicated to exist by a court of equity based on particular factual situations created by one or the other of the parties. The element of intent or agreement either oral or written to create the trust relationship is totally lacking. The trust is “constructed” by equity to prevent an unjust enrichment of one person at the expense of another as the result of fraud, undue influence, abuse of confidence or mistake in the transaction that originates the problem. (Emphasis supplied).

In Nuveen v. Board of Public Instruction, 88 F.2d 175 (5th Cir.1937), in dealing with a Gadsden County, Florida, bond issue, the court noted that all parties involved had acted in good faith, believing that the actions taken were valid. There, due to a decision of the supreme court, and decisions of the voters at the polls, Nuveen had been deprived of his right to repayment on city bonds. The court stated: “Equity will declare a constructive trust in proportion to the contributions of purchase money.”

In the instant case as in Wadlington and Nuveen, although there has been no showing that appellee engaged in any type of fraudulent conduct, undue influence, abuse of confidence or mistake, under the circumstances of this case, it appears that Joseph Holmes at least abused a confidence or made a mistake in failing to provide any life insurance on himself for the benefit of his minor child, as required by the. final judgment of dissolution and as was his obvious intention at the time of the drafting of the stipulation agreement. Therefore, equity requires imposition of a constructive trust in this situation, especially in light of the special duty owed by Mr. Holmes to Christy and in light of the public’s interest in having a father provide adequate support for his child.

Our determination in this case is supported by cases from other jurisdictions as well. In Gutierrez v. Madero, 564 S.W.2d 185 (Tex.Civ.App.1978), the court concluded that the former husband committed constructive fraud in violating the divorce decree by changing the names of the beneficiaries of his life insurance policy after entry of a final judgment of dissolution in which he was required to maintain life insurance policies on behalf of his minor children. The court declared that a constructive trust was created for the children and further stated that in determining what life insurance policy to which a final judgment referred, the circumstances surrounding the decree must be considered; that if a judgment is ambiguous, extrinsic evidence may be introduced to explain that ambiguity. The court concluded that the husband’s named beneficiary’s rights, as a gratuitous transferee, were inferior to the equitable rights of the minor children under the divorce decree. In Hirsch v. Travelers Insurance Company, 134 N.J.Super. 466, 341 A.2d 691 (1975), the court imposed a constructive trust in favor of the decedent’s children upon the property of his widow because the decedent had changed beneficiaries after entering into a property settlement which required that the children were to be designated beneficiaries of his life insurance policy. In Wunsche v. Equitable Life Assur. Soc., 551 S.W.2d 84 (Tex.Civ. App.1977), the court found that a minor had a vested equitable interest in insurance proceeds and imposed a constructive trust on the basis of a property settlement agreement which provided that he would maintain life insurance for the benefit of his minor child.

Under the facts of this case and in light of the above authorities, we find that appellant is entitled to the insurance proceeds in question. The trial judge erred in refusing to impose a constructive trust as to those funds.

REVERSED.

WENTWORTH and THOMPSON, JJ., concur.


text:
    Sally Clayton JENKINS, joined by her husband, Taylor Jenkins, Appellants, v. Charles Ray WEST, Frances Elaine West, and Atlanta Casualty Company, Appellees.
    No. AX-405.
    District Court of Appeal of Florida, First District.
    Feb. 19, 1985.
    Cecil G. Costin, Port St. Joe, for appellants.
    Jack G. Williams of Bryant, Higby & Williams, Panama City, for appellees.
   PER CURIAM.

On September 2,1982, plaintiff Sally Jenkins was injured in an automobile accident for which defendant conceded liability. The issue of damages was tried to a jury. Loss of income, past or future, was not claimed.

Prior to this accident, plaintiff was under the care of an orthopedic surgeon for a previous disability. Her left kneecap was removed, and, pursuant to her doctor’s advice, she retired from her employment. Plaintiff was totally disabled prior to the September 2, 1982 accident. Plaintiff began drawing social security in 1981 and applied for disability under the State retirement program prior to the accident, but received her first payment in April of 1983, subsequent to the accident.

At trial, the court instructed the jury that any social security payments and State retirement program disability payments re-ceivéd by the plaintiff were collateral source payments which should be deducted from their overall verdict. The instruction was based on Section 627.7372, Florida Statutes (1981). We do not construe that statute to allow deduction for social security benefits and disability payments which preexisted the instant accident. Indeed, an interpretation which would allow such a deduction could render the statute subject to challenge on constitutional grounds.

We hold that social security benefits and state retirement disability benefits to which plaintiff is entitled prior to the instant injury which compensate plaintiff for damages not sustained or claimed in the instant injury, are not collateral to an award of damages for the instant injury. See Transit Homes, Inc. v. Bellamy, 671 S.W.2d 153 (Arkansas 1984). The jury instruction was error; therefore, the award is reversed.

As to the second point on appeal, we agree that the plaintiff Taylor Jenkins offered substantial, undisputed evidence of loss of consortium. Hagens v. Hilston, 388 So.2d 1379 (Fla. 2d DCA 1980); Albritton v. State Farm Mutual Insurance Company, 382 So.2d 1267 (Fla. 2d DCA 1980); Webber v. Jordan, 366 So.2d 51 (Fla. 2d DCA 1978); Shaw v. Peterson, 376 So.2d 433 (Fla. 1st DCA 1979). Therefore, since liability was conceded, he is entitled to at least nominal damages. A zero verdict cannot stand.

For the foregoing reasons, the case is reversed and cause remanded for a new trial on all damages consistent with this opinion.

BOOTH and SHIVERS, JJ., and TILLMAN PEARSON (Ret.), Associate Judge, concur.

      . Constitutional vulnerability on this or any other ground is not at issue in this appeal.

      . In Transit Homes, Inc. v. Bellamy, 671 S.W.2d 153 at 160 (Ark.1984), the Arkansas Supreme Court explained:
      We do not think the court erred in allowing appellants credit for the $1,257 which the Veterans Administration was paying Bellamy in aid and attendance expenses. This sum was being paid prior to the occurrence here under consideration. It is not collateral income being received on account of the injuries received in the accident here in question.


author: SHIVERS, Judge.

text:
    Robbie PUGH, Appellant, v. STATE of Florida, Appellee.
    No. AY-349.
    District Court of Appeal of Florida, First District.
    Feb. 19, 1985.

      Michael E. Allen, Public Defender; and Virginia Daire, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Appellant/defendant was convicted by jury of grand theft and sentenced under the sentencing guidelines to five years in state prison. He now appeals both the conviction and the five year sentence. We affirm the conviction, but reverse and remand as to the sentence.

The first issue raised by appellant is whether the trial court erred in refusing to suppress an identification based on a “photo display.” Appellant argues that his was the only photo out of seven depicting a clean-shaven man and, thus, the display was “impermissibly suggestive.”

The Florida Supreme Court has stated that the “primary evil” to be avoided with the use of out-of-court identifications is the “very substantial likelihood of mis-identification.” Grant v. State, 390 So.2d 341 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981). In adopting the test set out by the U.S. Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Florida Supreme Court stated the two-fold inquiry to be:

(1) did the police employ an unnecessarily suggestive procedure in obtaining an out-of-court identification;
(2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification.

The factors to be considered in determining whether a likelihood of misidentification exists include:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Grant, 390 So.2d at 343, quoting Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382.

The trial judge examined the photo display in court and stated on the record that he was unable to tell whether defendant was the only man with no facial hair, that it appeared to him that two other men besides defendant had no facial hair, and that none of the men had beards. As we agree, after examination, with the trial judge that the photo display was not suggestive, we find it unnecessary to consider whether the procedure gave rise to a likelihood of misidentification.

Defendant next argues that the trial court made several errors in the calculation of his five year sentence under the sentencing guidelines. First, appellant argues that the 15 points assigned for one prior second-degree felony conviction should be removed from his scoresheet. Appellant was convicted in 1976 under section 812.-031, F.S. (“Receiving stolen property”), a third-degree felony. That section was repealed in 1977 and replaced with section 812.019, making the same offense a second-degree felony. The proper degree was not ascertained at the sentencing hearing, and the conviction was scored as a second-degree felony.

The only guidance we find applicable to this issue is contained in the Committee Note to Rule 3.701(d)(5), Fla.R.Crim.P., which states:

Any uncertainty in the scoring of the defendant’s prior record shall be resolved in favor of the defendant, and disagreement as to the propriety of scoring specific entries in the prior record should be resolved by the trial judge.

We agree with appellant that the 1976 conviction should have been scored as a third-degree felony. Since defendant had four other third-degree felonies, and the score-sheet does not count more than four convictions, the 15 points should be removed.

Appellant’s second sentencing issue is similar to the first. Under section (B) of the scoresheet, appellant was assigned 8 prior convictions for category 6 offenses at 5 points each, for a total of 40 points. As to one of these prior convictions, occurring on November 16, 1982, the record indicates that the State Attorney was unable to determine whether the offense was resisting arrest or shoplifting. The trial judge noted that, while shoplifting would constitute a category 6 offense, resisting arrest would not. Although the proper offense was never determined, the conviction was included on appellant’s scoresheet. Basing our reasoning again on the Committee Note cited above, we agree with appellant that the 5 points should be removed.

Appellant, finally, argues that four of the category 6 convictions were misdemeanors and, as these were already counted as prior misdemeanor convictions in section (A) of the scoresheet, their inclusion in section (B) would result in impermissible “double scoring.” We find appellant’s last argument to be without merit. Although appellant points out that Minnesota’s sentencing guidelines limit the number of misdemeanors which can be scored as prior offenses, Florida’s guidelines contain no such provision. In fact, we would note that Rule 3.988, Fla.R.Crim.P., has been recently amended to raise the number of prior convictions, including misdemeanors, which may be scored. Although this revision was not in effect at the time of 'the sentencing hearing below, it would suggest a policy different from that of the Minnesota Guidelines.

Accordingly, the conviction is affirmed; the sentence is reversed, and the cause is remanded for resentencing with instructions to reduce the total number of points under the sentencing guidelines from 107 to 87.

AFFIRMED in part; REVERSED in part; and REMANDED.

BOOTH, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


text:
    Nicolas GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. AY-373.
    District Court of Appeal of Florida, First District.
    Feb. 19, 1985.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The trial court’s written reasons for departure from the sentencing guidelines erroneously state that appellant was adjudicated guilty of robbery with a firearm and sentenced to 20 years of imprisonment. We remand for correction of these scrivener’s errors in conformance with the oral pronouncement of sentence and the written judgment and sentence. The judgment and sentence are, in all other respects, affirmed.

BOOTH and SHIVERS, JJ., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


text:
    SHOP & GO, INC., Appellant/Cross Appellee, v. Mary Frances DUNIGAN, Appellee/Cross Appellant.
    No. AZ-369.
    District Court of Appeal of Florida, First District.
    Feb. 19, 1985.

      Susan W. Fox and Richard A. Valeri of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant/cross appellee.
    Joseph V. Barrs of Barrs, Williamson & Levens, Tampa, for appellee/cross appellant.
   JOANOS, Judge.

Shop & Go, Inc., appellant, appeals from a workers’ compensation order in which the deputy commissioner awarded temporary partial disability (TPD) benefits to Duni-gan. Dunigan cross-appeals from the same order in which it was found that Dunigan had suffered no permanent physical impair.ment and her request for further medical treatment was dismissed with prejudice. We reverse the TPD award and affirm the remainder of the order.

Dunigan suffered a compensable knee injury on 8 May 1981 when she slipped and fell on the sidewalk at the convenience store where she was employed. She continued to work, even though her knees were swollen. Eventually Dunigan was seen by Dr. Eckart, an orthopedic surgeon, who diagnosed her as suffering from tendinitis or bursitis and treated her with medication. Dunigan was seen last by Dr. Ec-kart on 16 October 1981. Dunigan failed to keep a return visit scheduled for January, 1982. On 1 December 1981, Dunigan was fired due to a mixup in scheduling which the Deputy Commissioner considered immaterial to the order. She looked for work and received unemployment compensation until 26 March 1982 when the benefits were terminated. Dunigan then began working at another convenience store, until she was re-hired by Shop & Go in April, 1982 at a lower wage than she previously had earned. On 12 October 1982, Dunigan was seen by Dr. Young, orthopedic surgeon, who recommended surgery be performed on her knee. On 9 November 1982, Dr. Williamson, orthopedic surgeon, performed an arthroscopic examination and a lateral retinacular release on Dunigan’s right knee. Temporary total disability benefits were paid until Dunigan returned to work on 24 January 1983. Follow-up care was given until 31 May 1983 when Dr. Williamson found that Dunigan had full range of motion, with no further medical care needed, and no entitlement to an impairment rating under the AMA Guides. An independent medical evaluation by Dr. Wasylik, orthopedic surgeon, resulted in an opinion that Dunigan had no permanent impairment under the AMA Guides and no work restrictions. Dunigan continued to work until June, 1983 when she quit due to friction over her taking leave without authorization.

The deputy commissioner found no entitlement to further benefits based upon Dunigan’s reaching maximum medical improvement with no permanent impairment. TPD benefits, credited by the unemployment compensation benefits, were awarded for the period following Dunigan’s termination from Shop & Go until she began working for the other convenience store. TPD benefits were awarded also for the period she was re-hired by Shop & Go at the lower wage until she quit.

We reverse the award of TPD benefits since there is no competent, substantial evidence of a causal relationship between Dunigan’s knee injury and the loss of her job or the reduction in her wages. Where the only medical testimony is that Dunigan may work without restriction and, by her own testimony, the initial loss of her job, the reduced wages and the ultimate loss of employment did not result from her injury, Dunigan is not entitled to an award of TPD benefits. Electone, Inc. v. Walsh, 447 So.2d 954 (Fla. 1st DCA 1984).

All of the medical testimony provides competent, substantial evidence to support the deputy commissioner’s findings that Dunigan has no permanent physical impairment and no need for further medical treatment. We note, however, that the deputy commissioner’s dismissal with prejudice of Dunigan’s claim for further medical treatment does not prejudice Dunigan’s rights to modification pursuant to section 440.28, Florida Statutes.

Accordingly, the award of TPD benefits is reversed and the remainder of the order is affirmed.

MILLS and BARFIELD, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Fabian Cortel McINTYRE, Appellee.
    No. 84-406.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1985.
    Jim Smith, Atty. Gen., and Renee E. Rus-ka, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Smith v. Illinois, — U.S. —, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984); DeConingh v. State, 433 So.2d 501 (Fla.1983), cert. denied, — U.S.—, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984); State v. Wininger, 427 So.2d 1114 (Fla. 3d DCA 1983); State v. Echevarria, 422 So.2d 53 (Fla. 3d DCA 1982), pet. for rev. denied, 434 So.2d 889 (Fla.1983).


text:
    James I. SOMERSET, Appellant, v. The STATE of Florida, Appellee.
    No. 84-876.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1985.
    Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Billb-rough, Asst. Atty. Gen., for appellee.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

We affirm upon a finding that the trial court did not abuse its discretion in imposing the maximum sentence permissible within the applicable guideline range. See Fraley v. State, 426 So.2d 983 (Fla. 3d DCA 1983).

Affirmed.


text:
    Sharie KOVACS and Robert A. Kovacs, Appellants, v. PEPSI COLA BOTTLERS OF MIAMI, INC., Raul E. Echevarria and Liberty Mutual Insurance Company, Appellees.
    No. 84-983.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1985.
    Tobin & Thomson, and John M. Thomson, Coral Gables, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Diane H. Tutt; Thornton & Herndon and Gail V. Ferrington, Miami, for appellees.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Banat v. Armando, 430 So.2d 503 (Fla. 3d DCA 1983), rev. denied, 446 So.2d 99 (Fla.1984); Frank v. Pioneer Metals, Inc., 121 So.2d 685 (Fla. 3d DCA), cert, denied, 123 So.2d 676 (Fla.1960).


text:
    David LORE, Appellant, v. U-TOTEM OF MIAMI, INC., a Florida corporation, Appellee.
    No. 84-1794.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1985.
    Gordon W. Taylor, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Fred R. Ober, Miami, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Finding that the record reflects the absence of any genuine issue of material fact regarding the existence of a defective condition causing appellant Lore’s fall on the sidewalk of appellee U-Totem of Miami, Inc. [U-Totem], we affirm the summary final judgment in favor of U-Totem. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982); Proprietors Insurance Company v. Siegel, 410 So.2d 993 (Fla. 3d DCA 1982).

Affirmed.


text:
    RUBIN MEMORIAL CHAPELS, LTD., a Florida Limited Partnership, Murray Rubin, and Leonard Zilbert, Appellants, v. A. Lionel BOSEM, Appellee.
    No. 84-2377.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1985.

      Joe N. Unger, Mechanic & Goldstein, P.A., Miami, for appellants.
    Jeffrey A. Sarrow, Plantation, for appel-lee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Mercer v. Raine, 443 So.2d 944 (Fla.1983); A.H. Robins Co. v. Devereaux, 415 So.2d 30 (Fla. 3d DCA 1982), pet. for rev. denied, 426 So.2d 25 (Fla.1983); Watson v. Peskoe, 407 So.2d 954 (Fla. 3d DCA 1981).


author: HURLEY, Judge.

text:
    Christian Rolland SHANNON a/k/a Alfred Reindeau, Appellant, v. STATE of Florida, Appellee.
    No. 83-1658.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1985.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

This appeal challenges the adequacy of the trial court’s instructions on self-defense. We reverse.

Defendant was involved in a pre-dawn fracas in a Fort Lauderdale diner. As a result, he was arrested, charged and tried for battery on a police officer, resisting arrest with violence, and battery. During the instruction conference at the conclusion of the trial, the defendant objected to the court’s announced intent to read the portion of Florida Standard Jury Instruction 3.04(d) which states that a person is never justified in the use of any force to resist an arrest. The defendant also tendered a special jury instruction which, in essence, stated that an accused could use non-deadly force to resist an arrest if the arresting officer used unlawful or excessive force.

Rather than resolve the conflict between these instructions, the trial court elected to give both back-to-back. Thus, the jury was told that force could be used in certain circumstances to resist an unlawful arrest and, in the next breath, the court stated that a person is never justified in the use of any force to resist an arrest. Obviously, these statements are diametrically opposed; they confused — rather than explained — a key principle of law in the defendant’s case. The trial court has an obligation to give full instructions on applicable principles of law. See Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982). Implicit is the requirement that instructions be coherent and comprehensible. Those given in the case at bar fail to meet this minimum standard and, thus, we must reverse.

To aid the court on retrial we note that in Lowery v. State, 356 So.2d 1325, 1326 (Fla. 4th DCA 1978), we held that “the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest.” See also State v. Gilchrist, 458 So.2d 1200 (Fla. 5th DCA 1984); State v. Barnard, 405 So.2d 210 (Fla. 5th DCA 1981). Lowery did not involve an allegation of unlawful force in the effectuation of the arrest and, therefore, we left open the question of a defendant’s right to use force in defense of his person under section 776.012. This issue was addressed in Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 470 (Fla.1982), where the court held that an individual may defend himself against unlawful or excessive force, even when being arrested. See also Jones v. State, 429 So.2d 396 (Fla. 1st DCA 1983), review denied, — U.S.—, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983); Allen v. State, 424 So.2d 101 (Fla. 1st DCA 1982), rev. denied, 436 So.2d 97 (Fla.1983); Holley v. State, 423 So.2d 562 (Fla. 1st DCA 1982). Thus, on retrial, the court must determine whether there is some proof of unlawful force in effectuating the arrest. If there is, the standard instruction is inappropriate and should not be given. See Pittman v. State, 440 So.2d 657 (Fla. 1st DCA 1983).

Accordingly, defendant’s convictions and sentences are reversed and the cause is remanded for a new trial.

DOWNEY and GLICKSTEIN, JJ., concur.

      . § 784.07, Fla.Stat. (1983).

      . § 843.01, Fla.Stat. (1983).

      .§ 784.03, Fla.Stat. (1983).


text:
    Henry GLEN, Appellant, v. STATE of Florida, Appellee.
    No. 84-1543.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1985.

      Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The public defender’s motion to withdraw is granted and judgment and sentence are affirmed.

The assistant public defender accurately identified the arguable point on appeal to be whether a person may be taken into custody for an investigatory detention in order to remove physical evidence from the person’s body, namely a hair sample. She pointed out there was competent substantial evidence in the record of this case that appellant voluntarily accompanied an officer to the police station and cooperated in the removal of hair from his head with a comb. Alternatively, drawing legal support from Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), and Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), she showed there was probable cause to detain the appellant and to intrude upon his body in a limited manner in order to preserve ephemeral evidence. Considering the facts of this case and the pertinent case law, it is clear that appellant could not prevail.

We remind all counsel for criminal defendants that defense counsel’s role in an appeal is that of defendant’s active advocate, not amicus curiae, and that defendant is entitled to the representation unless the appeal is wholly frivolous. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Where there are legal points arguable on the merits, defense counsel should prepare a conventional appellate brief, not an Anders brief.

GLICKSTEIN, DELL and WALDEN, JJ., concur.


text:
    Raymond Larue McCURDY, Appellant, v. STATE of Florida, Appellee.
    No. 84-992.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 1985.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Hackney v. State, 456 So.2d 1209 (Fla. 5th DCA 1984); Maged v. State, 455 So.2d 1153 (Fla. 5th DCA 1984).

COBB, C.J., and ORFINGER and CO-WART, JJ., concur.


text:
    UNITED MORTGAGE INVESTMENT CORPORATION and St. Johns Financial, Inc., Appellants, v. Eileen M. BRAKE, individually, Appellee.
    No. 84-2448.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1985.
    Barnett & Kress and Robert Barnett, Miami, for appellants.
    Robert M. Brake, Coral Gables, for ap-pellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Islamorada Bank v. Rodriguez, 452 So.2d 61 (Fla. 3d DCA 1984); Mortgage Corp. of America v. Inland Construction Co., — So.2d—(Fla. 3d DCA, Case no. 84-1229, opinion filed, January 22, 1985) [10 FLW 243].


text:
    Nicholas Joseph SICA, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 83-2024.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1985.
    Barry G. Roderman and Carl Karmin of Barry G. Roderman, P.A., Fort Lauderdale, for appellant.
    Jeanne Heyward, Miami, and John E. Donahoe, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed on the authority of Reid v. State Farm Fire & Casualty Co., 352 So.2d 1172 (Fla.1977).

DOWNEY, HURLEY and WALDEN, JJ., concur.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Walter E. JOHNSON, Jr.
    No. 84-K-2047.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Johnson, Walter E. Jr., Applying for Writ of Certiorari and/or Review Court of Appeal, First Circuit, No. 83-KA-1325, 458 So.2d 937; Parish of East Baton Rouge, 19th Judicial District Court Div. “J”, No. 11-82-256.

Denied. Because the defendant was ultimately convicted of the extraneous offense, the error of the Court of Appeal was harmless. Nevertheless Arceneaux v. Domingue does not relate to any standard of review in a criminal case. The Court of Appeal should never affirm a ruling of the district court in criminal cases merely because it is not “clearly wrong.”

DENNIS, J., would grant the writ.

LEMMON, J.,

votes to grant to determine (1) whether intent to commit a theft or other felony inside the residence was a true issue in the charged offense (since the defendant was standing over the bed of the 14-year old child with a knife in his hand) and (2) whether the evidence of the extraneous crime was so probative on the issue of intent as to outweigh its prejudicial effect.


text:
    Glenn GASTAL, et al., Individually and on Behalf of Their Minor Child v. Archibishop Philip M. HANNAN, Bishop Gerald L. Frey, Vicar General Richard Von Puhl Mouto Monsignor Harry E. Benefiel, Monsignor H.A. Larroque, The Archdiocese of New Orleans D/B/A The Roman Catholic Church, The Roman Catholic Church For the Diocese of Lafayette, The Roman Catholic Church, St. John Parish, Representing The Communities of Esther and Henry, Vermilion Parish, Louisiana, Certain Underwriters at Lloyd’s of London, Interstate Insurance Company and Father Gilbert Gauthe.
    No. 85-CD-0102.
    Supreme Court of Louisiana.
    Feb. 27, 1985.
   PER CURIAM.

GRANTED IN PART. Relator is to be granted full access to the records in Proceedings No. 84-48174, 84-48175, 84-48176 and 84-48177 for purposes of discovery. Furthermore, relator is entitled to proceed with discovery of parties and witnesses in this proceeding, subject only to the limitations imposed by the Code of Civil Procedure. This court will not interfere at this time with any restrictions placed on relator and his staff by the trial court as to information obtained pursuant to such discovery, subject to further applications by relator.

DENNIS, J., would grant the writ and place the case on this Court’s docket for argument and a full opinion.


text:
    STATE of Louisiana v. Clarence MATTHEWS.
    No. 84-KA-1741.
    Supreme Court of Louisiana.
    March 1, 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 plaintiff-appellee.
    Dwight Doskey, Maurice Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PER CURIAM.

Defendant’s conviction for attempted possession of heroin with the intent to distribute in violation of La.R.S. 14:27; 40:966 is affirmed. His sentence of thirty-three and a third years at hard labor is amended, however; the words “without benefit of probation, parole, or suspension of sentence” are removed. Cf., R.S. 14:27(d)(l); State v. Green, 391 So.2d 833 (La.1980); State v. Wymore, 377 So.2d 283, 285 (La. 1977). In all other respects, the sentence imposed by the trial court is affirmed.

CONVICTION AFFIRMED: SENTENCE AMENDED AND AS AMENDED AFFIRMED.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Larry Preston WILLIAMS.
    Nos. 84-B-1403, 84-B-1458.
    Supreme Court of Louisiana.
    Feb. 6, 1985.
   In re Larry Preston Williams, applying for continuance of Commissioner’s Hearing.

Relator’s motion for continuance of the Commissioner’s hearing is denied. The matter is moot. The Commissioner advises that the hearing was conducted this morning at 9:30 AM, with respondent’s attorney present, and concluded without scheduling a date or time for reconvening the hearing at any time.


text:
    STATE of Louisiana v. Terry SMART.
    No. 85-KH-0252.
    Supreme Court of Louisiana.
    Feb. 7, 1985.
   In re Smart, Terry, applying for remedial writs; Parish of Bienville, 2nd Judicial District Court, Div. “A”.

Granted. Application transferred to the district court with instructions to the trial judge to act on this application within 48 hours.


text:
    STATE of Louisiana v. Kenneth H. SUMMERS.
    No. 85-K-0166.
    Supreme Court of Louisiana.
    Feb. 7, 1985.
   In re Kenneth H. Summers, applying for stay order; Court of Appeal, Second Circuit, No. 16636-KA; 4th Judicial District Court, Parish of Ouachita, No. 40719.

Prior report: 461 So.2d 348.

Stay order denied.


text:
    STATE of Louisiana v. Peggy LILLY.
    No. 84-K-2167.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Lilly, Peggy, applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. KA-84-0354; Parish of East Baton Rouge, 19th Judicial District Court, Div. “I”, No. 8-80-620.

Prior report: 459 So.2d 1313.

Granted.


text:
    James F. PERCY, et ux. v. SAFEGUARD INSURANCE COMPANY.
    No. 85-C-0068.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Safeguard Insurance Co., applying for writ of certiorari and/or review, and supervisory; to the Court of Appeal, Third Circuit, No. 83-1129; Parish of Rapides, 9th Judicial District Court, Div. “D”, No. 127012.

Prior report: 460 So.2d 724.

Granted.


text:
    Mary K. HAY v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 85-C-0080.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Hay, Mary K., applying for supervisory writ; to the Court of Appeal, Third Circuit, No. 83-1087; Parish of Rapides, 9th Judicial District Court, Div. “F”, No. 107-444.

Prior report: 459 So.2d 1356.

Granted.


text:
    STATE of Louisiana ex rel., Kenneth S. RAINES v. J.D. MIDDLEBROOKS, Warden.
    No. 85-KH-0003.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Raines, Kenneth S., applying for writ of certiorari and/or review; Parish of Lafayette, 15th Judicial District Court, Div. “B”, No. 45316; to the Court of Appeal, Third Circuit, No. K-84-871.

Granted. An evidentiary hearing is ordered on Relator’s application. Trial judge to appoint counsel to represent him at hearing.


text:
    STATE of Louisiana v. John EBARB.
    No. 85-KK-0057.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Ebarb, John, applying for writ of certiorari and/or review; Parish of Caddo, 1st Judicial District Court, Div. “F”, No. 116193; to the Court of Appeal, Second Circuit, No. 16925-KW.

Granted and remanded for reconsideration before a panel of three different judges. See La.C.Cr.P. art. 671(5).


text:
    STATE of Louisiana ex rel. MYLES, Willie Edward v. FOURTH JUDICIAL DISTRICT COURT, CLERK OF COURT, PARISH OF OUACHITA.
    No. 85-KH-0176.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Myles, Willie Edward, applying for writ of certiorari and/or review; Parish of Ouachita, Fourth Judicial District Court, Div. “A”, Nos. 86833, 37690.

Granted. The trial court is ordered to furnish relator a transcript of his guilty plea.


text:
    STATE ex rel. Marvin Lee SMITH v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KH-2211.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Smith, Marvin Lee, applying for writ of habeas corpus, certiorari, prohibition and mandamus; to the Court of Appeal, First Circuit, No. KW 84 0918; Parish of East Baton Rouge, 19th Judicial District Court, Div. “I”, Nos. 11-81-139, 1-83-477.

Granted for the purpose of transferring to the Court of Appeal, First Circuit.


text:
    STATE of Louisiana v. Floyd L. BROWNING, Jr.
    No. 84-K-1715.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Browning, Floyd L. Jr., applying for supervisory writs to the Court of Appeal, Second Circuit, No. 16292-KA; Parish of Franklin, 5th Judicial District Court, Div. “C”, No. 22124.

Prior report: 454 So.2d 1241.

Granted in part; denied in part. Sentence vacated and set aside; case remanded to district court for resentencing in accordance with La.Code Crim.P. art. 894.1; otherwise denied.


text:
    Carroll CURTIS, Jr., Individually and on Behalf of the Estate of Allison Claire Curtis, Brian Keith Curtis, Richard James Curtis, and John Michael Curtis v. Guyton H. WATKINS and Roland Breaux.
    No. 85-C-0007.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Curtis, Carroll et al., Curtis, Allison Claire, Curtis, Brian Keith, Curtis, Richard James, Curtís, John Michael, applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-913; Parish of Iberia, 16th Judicial District Court, Div. “A”, No. 47888.

Not considered. Not timely filed.


text:
    STATE ex rel. Gerald WILLIAMS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1875.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Gerald Williams, applying for reconsideration of denied writ on October 5, 1984, 457 So.2d 1190, from Eighteenth Judicial District Court, Parish of Iberville, No. 3496-81.

Denied.


text:
    STATE of Louisiana ex rel. Charles Edward TATE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KH-2081.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Charles Edward Tate, applying for reconsideration of writ not considered January 7, 1985, 462 So.2d 204, from the 19th Judicial District Court, Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel., Leon DUGAS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-2323.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Leon Dugas, applying for remedial writs from the Criminal District Court, Parish of Orleans, No. 251-457.

Denied.


text:
    STATE of Louisiana ex rel. Johnnie DICKERSON v. J. Edward LAYRISSON, District Attorney, 21st JDC, State of Louisiana.
    No. 84-KH-0320.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Johnnie Dickerson, applying for remedial writs to the Twenty-First Judicial District Court, Parish of Tangipahoa, No. KH/83/1422.

Denied.


text:
    STATE ex rel. Troy M. OATSVALL v. Ross MAGGIO, Jr. Warden.
    No. 84-KH-1341.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Troy M. Oatsvall, applying for writ of habeas corpus to the Twenty-Second Judicial District Court, Parish of Washington, Nos. 37045, 37204.

Denied.


text:
    STATE ex rel. Donald CARSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, State of Louisiana.
    No. 84-KH-1639.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Carson, Donald, applying for writ of certiorari, Parish of Washington, 22nd Judicial District Court, Div. “C”, No. 37445; to the Court of Appeal, First Circuit, No. KW-841058.

Denied.


text:
    STATE of Louisiana v. Aubrey MITCHELL.
    No. 84-K-2118.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Mitchell, Aubrey, applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 16522-KA; Parish of Caddo, First Judicial District Court, Div. “I”, No. 123345.

Prior report: 459 So.2d 91.

Denied.

LEMMON, J., concurs and will assign reasons.


text:
    STATE of Louisiana v. Samelia JACOBSON and Elizabeth Strain.
    No. 84-K-2148.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Jacobson, Samelia et al., Strain, Elizabeth, applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. 84-KA-0118; Parish of East Baton Rouge, 19th Judicial District Court, Div. “G”, No. 9-81-830.

Prior report: 459 So.2d 1285.

Denied.

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


text:
    STATE of Louisiana v. Randy D. THARPE.
    No. 84-K-2166.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Tharpe, Randy D., applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, Nos. 16243-KA, 16244-KW; Parish of Ouachita, 4th Judicial District Court, Div. “B”, No. 82-887.

Prior Report: 459 So.2d 44.

Denied.

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


text:
    STATE of Louisiana v. Kenneth SPEARS.
    No. 84-K-2171.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Spears, Kenneth, applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, Nos. 84-KA-0420, 84-KA-0421; Parish of East Baton Rouge, 19th Judicial District Court, Div. “G”, Nos. 10-81-636, 1-83-289.

Prior report: 459 So.2d 1328.

Denied.


text:
    STATE of Louisiana v. Nolan JAMES, Jr.
    No. 84-K-2175.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re James, Nolan Jr., applying for writ of certiorari and/or review, writ of mandamus; to the Court of Appeal, First Circuit, No. KA-84-0351; Parish of Ascension, 23rd Judicial District Court, -Div. “D”, No. 402.

Prior report: 459 So.2d 1299.

Denied.

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


text:
    Herbert RAINEY v. Mary A. GERARVE, Gerard F. Gerarve, Individually and as Head and Master of the Community of Acquets and Gains State Farm Mutual Automobile Insurance Company, Travelers Insurance Company and Allstate Insurance Company.
    No. 85-C-0056.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Rainey, Herbert, applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 83-CA-840; Parish of Jefferson, 24th Judicial District Court, Div. “0”, No. 243-270.

Prior report: 461 So.2d 464.

Denied.


text:
    STATE of Louisiana v. Betty R. NIETTE.
    No. 85-KK-0058.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Niette, Betty R., applying for writ of certiorari and/or review, prohibition and mandamus; Parish of Caddo, 1st Judicial District Court, Div. “D”, No. 127182; to the Court of Appeal, Second Circuit, No. 16899-KW.

Denied.


text:
    SUCCESSIONS OF Wilna Thibodaux LANDRY and Sidney Pierre Landry, Sr.
    No. 85-C-0061.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Landry, Sidney P. Jr., applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-1065; Parish of Lafayette, 15th Judicial District Court, Div. “A”, No. 16981.

Prior report: 460 So.2d 86.

Denied. Result is correct.


text:
    Norma Smith JETER, et al. v. Michael J. MARSE, et ux.
    No. 85-C-0063.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Jeter, Norma Smith et al., Gleason, Sheila Jeter, applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-1114; Parish of Rap-ides, 9th Judicial District Court, Div. “A”, No. 120225.

Prior report: 460 So.2d 711.

Denied.


text:
    Barbara Holt BLANCQ v. Ronald H. BLANCQ.
    No. 85-C-0064.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Blancq, Barbara Holt, applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 84-CA-115; Parish of Jefferson, 24th Judicial District Court, Div. “A”, No. 254-870.

Denied.

LEMMON, J., would grant the writ.


text:
    Patrick L. DONNELLY v. Charles L. KOVIACH, State Farm Insurance Company and Sentry Insurance Company.
    No. 85-C-0065.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Donnelly, Patrick L., applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 84-CA-92; Parish of Jefferson, 24th Judicial District Court, Div. “L”, No. 266-619.

Denied.


text:
    Richard C. BUCKMAN, In His Capacity as Testamentary Executor of the Succession of Ben D. Buckman and Richard L. Weinstein v. TEXBERRY CONTAINER CORPORATION.
    No. 85-CC-0069.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Coleman, William N. Jr., applying for supervisory writ; Parish of Orleans, Civil District Court, Div. “J”, No. 81-8926; to the Court of Appeal, Fourth Circuit, No. C-3219.

Denied.

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


text:
    Hillary TURNER and Bernard Turner v. DELTA BANK AND TRUST CO., INC., Bertha Turner, Ray C. Ansardi, Annette O’Quinn and Ben Turner.
    No. 85-C-0070.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Turner, Hillary, and Turner, Bernard, applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-2069; Parish of Plaque-mines, 25th Judicial District Court, Div. “B”, No. 23-766.

Prior report: 462 So.2d 678.

Denied.

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


text:
    STATE FARM FIRE AND CASUALTY COMPANY v. ZURICH AMERICAN INSURANCE COMPANY.
    No. 85-C-0072.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Zurich American Ins. Co., applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-1021; Parish of Calcasieu, 14th Judicial District Court, Div. “C”, No. 81-4528.

Prior report: 459 So.2d 205.

Denied.


text:
    Jim WATKINS, d/b/a S/B Silver Fox v. KERR-McGEE OIL INDUSTRIES, INC. and Texas Gulf, Inc.
    No. 85-C-0075.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Watkins, Jim d/b/a, S/B Silver Fox, applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 84-5; Parish of Cameron, 38th Judicial District Court, Div. “ ”, No. 7875.

Prior report: 460 So.2d 763.

Denied.

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


text:
    ERNEST SIMON & SON v. PERMA-CLAD OF GEORGIA, INC., A DIVISION OF ATLANTA VENETIAN BLIND MANUFACTURING CO.
    No. 85-C-0079.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Perma-Clad/Georgia, Inc. et al., Aetna Casualty & Suty. Co., applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-1053; Parish of Vermilion, 15th Judicial District Court, Div. “H”, No. 81-43799.

Prior report: 459 So.2d 213.

Denied.


text:
    Elrena Marie LEDET v. Dr. A.C. MILLER and Dr. Thomas P. LaHaye.
    No. 85-C-0082.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Ledet, Elrena Marie, applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-1014; Parish of St. Landry, 27th Judicial District Court, Div. “A”, No. 89180.

Prior report: 459 So.2d 202.

Denied.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Noemie MALLET v. LOUISIANA NURSING HOMES, INC. and Zurich Insurance Company.
    No. 85-C-0084.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Louisiana Nursing Homes et al., Zurich Ins. Co., applying for writ of certio-rari and/or review; to the Court of Appeal, Third Circuit, No. 83-953; Parish of Vermilion, 15th Judicial District Court, Div. “J”, No. 81-43418.

Prior report: 459 So.2d 178.

Denied.


text:
    STATE ex rel. Thaddeus M. BATISTE v. STATE of Louisiana.
    No. 85-KH-0085.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Batiste, Thaddeus M., applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. K-3063; Parish of Orleans, Criminal District Court, Div. “C”, No. 296-729.

Denied.


text:
    Arlette C. LONG, Individually, and John J. Long, Jr., Individually v. ABC INSURANCE COMPANY OR COMPANIES, Dr. Luis Oms, Dr. Alton Ochsner, Jr., and Montelepre, Inc. and/or Montelepre Memorial Hospital.
    No. 85-C-0088.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Long, Arlette C. Individ, et al., Long, John J. Jr., Individ., applying for writs of prohibition, certiorari, mandamus and review; to the Court of Appeal, Fourth Circuit, No. CA-2737, 462 So.2d 252; Parish of Orleans, Civil District Court, Div. “E”, No. 81-14635.

Denied.


text:
    STATE ex rel. Torreonno McKINNEY v. STATE of Louisiana.
    No. 85-KH-0091.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re McKinney, Torreonno, applying for remedial writs; Parish of Orleans, Criminal District Court, Div. “G”, No. 293-964.

Denied.


text:
    Noemie MALLET v. LOUISIANA NURSING HOMES, INC. and Zurich Insurance Company.
    No. 85-C-0097.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Mallet, Noemie, applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-953; Parish of Vermilion, 15th Judicial District Court, Div. “J”, No. 81-43418.

Prior report: 459 So.2d 178.

Denied.

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


text:
    STATE of Louisiana v. Lee A. WILLIAMS.
    No. 85-KK-0103.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Williams, Lee A., applying for writ of certiorari and/or review; Parish of St. Martin, 16th Judicial District Court, Div. “B”, No. 82993; to the Court of Appeal, Third Circuit, No. K-84-886.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE ex rel. Charles “Silver” ANDERSON v. Donald R. GUILLORY, Warden.
    No. 85-KH-0111.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Anderson, Charles “Silver”, applying for writ of certiorari and/or review; Parish of Concordia, 7th Judicial District Court, Div. “B”, No. 81-4158.

Denied.


text:
    STATE ex rel. Leonard DARSON v. STATE of Louisiana et al., John P. Whitley, Warden, Louisiana Department of Corrections, Hunt Correctional Center, Parish of Iberville, State of Louisiana; Honorable H. Ward Fontenot, Judge, Thirty-Eighth Judicial District Court, Parish of Cameron, State of Louisiana.
    No. 85-KH-0113.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Darson, Leonard, applying for writ of habeas corpus; Parish of Cameron, 38th Judicial District Court, Div. “ ”, Nos. 43123, 43124.

Writ denied. Appeal is pending.


text:
    STATE of Louisiana v. Albert WILLIAMS.
    No. 85-KH-0117.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Williams, Albert, applying for writ of certiorari and/or review; Parish of Orleans, Criminal District Court, Div. “B”.

Denied.


text:
    STATE ex rel. William Hale CONGER v. STATE of Louisiana.
    No. 85-KH-0129.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Conger, William Hale, applying for remedial writ; Parish of Orleans, Criminal District Court, Div. “G”, No. 297-507; to the Court of Appeal, Fourth Circuit, No. K-3166.

Denied.


text:
    STATE ex rel. David NELSON a/k/a Melvin P. Andry v. Hon. Frank A. MARULLO, Judge, Section “D”, Criminal District Court, Parish of Orleans.
    No. 85-KH-0138.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Nelson, David a/k/a, Andry, Melvin P., applying for writ of mandamus; Parish of Orleans, Criminal District Court, Div. “D”.

Denied. Moot.


text:
    STATE ex rel. Thomas E. RICHARD v. James A. BRUMLEY, Jr., Sheriff of Sabine Parish.
    No. 85-KH-0139.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Richard, Thomas E., applying for writ of habeas corpus; Parish of Sabine, 11th Judicial District, Div. “B”, No. 33748.

Denied. Relief sought by relator in this Court is pending in the 3rd Circuit Court of Appeal and application is therefore premature.


text:
    STATE ex rel. Richard A. PASS v. Frank C. BLACKBURN, Warden.
    No. 85-KH-0141.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Pass, Richard A., applying for remedial writ; Parish of Orleans, Criminal District Court, Div. “C”, Nos. 259-318, 256-975.

Denied. Relator must apply first to district court.


text:
    STATE ex rel. Thomas PICKENS v. STATE of Louisiana.
    No. 85-KH-0151.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Pickens, Thomas, applying for writ of mandamus; Parish of Jefferson Davis, 31st Judicial District Court, Div. “ ”, Nos. 160-60, 161-60.

Denied. Moot.


text:
    STATE of Louisiana v. Raymond HARRIS.
    No. 85-KH-0153.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Harris, Raymond, applying for writ of certiorari and/or review; Parish of Orleans, Criminal District Court, Div. “I”, No. 299-235; to the Court of Appeal, Fourth Circuit, No. K-3249.

Denied.


text:
    Susan Springer, Wife of Randolph BELSOM v. Randolph BELSOM.
    No. 85-CC-0231.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Belsom, Randolph, applying for stay, writs of certiorari, prohibition, mandamus and review; Parish of Orleans, Civil District Court, Div. “I”, No. 84-17901; to the Court of Appeal, Fourth Circuit, No. C-3254.

Denied. Attachments to application indicate that trial judge has granted relator’s motion to proceed in forma pauperis. La. Code Civ.P. art. 5181, as amended by Acts 1972, No. 663, § 1 (also amended by Acts 1984, No. 509, § 1) no longer requires Louisiana citizenship. There is no merit to the jurisdictional contention.


text:
    STATE of Louisiana v. Cole BRIDGES.
    No. 85-KK-0247.
    Supreme Court of Louisiana.
    Feb. 8, 1985.
   In re Bridges, Cole, applying for stay, writ of review; to the Court of Appeal, First Circuit, No. KW 84 1428; Parish of Livingston, 21st Judicial District Court, Div. “C”, No. 53617.

Denied. Stay order moot.


author: PRICE, Judge. PRICE, Judge Pro Tern.

text:
    Ray STEPHENS, Plaintiff-Appellant, v. MADISON PARISH POLICE JURY, Defendant-Appellee.
    No. 16606-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    On Rehearing Jan. 23, 1985.
    Crawford A. Rose, Jr., Rayville, for plaintiff-appellant.
    James D. Caldwell, Dist. Atty., Tallulah, for defendant-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiff, Ray Stephens, appeals from a judgment in favor of defendant, Madison Parish Police Jury, upholding the results of a local option election held in Ward Eight of Madison Parish.

Plaintiff, Ray Stephens, is the owner of a small convenience store located in Madison Parish which sells alcoholic beverages. On September 23,1982, a petition to call a local option referendum on the sale and consumption of alcoholic beverages in Ward 8 of Madison Parish was filed with the police jury. A resolution ordering the local option election was adopted by the police jury on November 11,1982, and the election was held on January 15, 1983. The following four propositions were placed on the ballot:

(1) Shall the sale of beverages of low alcoholic content containing more than three and two-tenths percent alcohol by weight and not more than six percent alcohol by volume be permitted in Ward 8, Madison Parish, Louisiana?
(2) Shall the sale of beverages containing more than one-half of one percent alcohol by volume, but not more than three and two-tenths percent alcohol by weight be permitted in Ward 8, Madison Parish, Louisiana?
(3) Shall the sale of beverages of high alcoholic content containing more than six percent alcohol by volume for consumption on the premises be permitted in Ward 8, Madison Parish, Louisiana? (4) Shall the sale of beverages of high alcoholic content containing more than six percent alcohol by volume be permitted by package only and not for consumption on the premises in Ward 8, Madison Parish, Louisiana?

Each one of the propositions failed. On January 27, 1983, the police jury adopted a resolution promulgating the results of the special election and a proces verbal was issued. Plaintiff filed suit on January 27, 1983, seeking to have the election nullified and requested the issuance of a preliminary injunction to prohibit the police jury from passing an ordinance putting the election results into effect. After several hearings on various matters, a trial on the merits was held on June 7, 1984.

The evidence presented at the trial established that in October 1889, Ordinance 377 was adopted creating seven wards within Madison Parish. In April 1908, Ordinance 464 was adopted creating an eighth ward. Pursuant to a federal reapportionment plan in 1971, the parish was reapportioned into four wards with voting precincts. In 1979, the parish was further reapportioned into eight voting districts. The evidence revealed that the police jurors were elected from each newly created wards after the reapportionment in 1971 and from each district after the 1979 reapportionment. The tax assessor of Madison Parish, J.D. Sevier, testified that the tax records of the parish were maintained by wards and four wards had been on the assessment records since the reapportionment in the seventies. Myrtis Bishop, the registrar of voters for the parish of Madison, testified that the voter rolls were maintained pursuant to the district subdivision imposed by the 1979 reapportionment.

Old Ward Eight is now encompassed within the area now designated as Ward 3, District 2-A. The district is somewhat larger than the old ward area. At the election, approximately 6-7 people were not permitted to vote on the local option issue as they lived outside the confines of Old Ward Eight.

At trial, the plaintiff argued that the election was not timely called as required by La.R.S. 26:586 and that the election was void under La.R.S. 26:582 as it was called for an area less than a ward. Defendant essentially argued that the use of Old Ward 8 was permissible for a local option election as the reapportionment of the parish was federally mandated rather than initiated by voluntary action of the police jury. Defendant also asserted that the matter should be dismissed as the trial was not held within four days after the suit was filed as required by La.R.S. 18:1409 A.

The court found that for the purposes of a local option election, Old Ward Eight was still in existence even though the parish had been reapportioned. The court did not rule on the procedural issues raised by the parties. The court stated that it was “ignoring the technicalities” choosing rather to consider the substance of the election and appeared to find that the plaintiff failed to show that the results of the election would have been different.

The primary issue before this court on appeal is whether the use of Old Ward Eight is valid for purposes of a local option election. We reverse the judgment of the trial court for the following reasons.

La.R.S. 26:582 provides as follows:

Upon petition of not less than twenty-five percent of the qualified electors residing in any parish, ward, or any incorporated municipality the governing authority shall order a referendum election to be held to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages, shall be conducted and licensed therein.
In the case of such an election held on other than a parishwide basis the election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward. In the case of an election called on a parishwide basis the result shall be binding on the entire parish.
No such election shall be held for the same subdivision oftener than once in every two years. (Emphasis added)

It is clear from the language of the statute that the only political subdivisions empowered to conduct a local option election are a parish, ward, or incorporated municipality. A ward is defined in La.R.S. 18:2 as a police jury ward. The evidence establishes that pursuant to the federal reapportionment plan, Madison Parish was subdivided into four wards. The minutes of the police jury reflect that in regular session on July 8, 1971, the newly created wards and voting precincts were fully described by a metes and bounds description. It appears that the new wards and precincts were unanimously adopted by the jury. On August 9, 1979, the police jury unanimously approved the reapportionment into eight voting districts and boundary descriptions of each of the new districts were included in the meeting minutes. Police jurors were then elected pursuant to the district reapportionment.

Once the jury adopted the reapportionment in 1971 into four wards, it appears that the old ward lines were not used for any election purpose. As Old Ward 8 no longer served any political purpose, it was effectively abolished. All the parish records were maintained pursuant to the reapportionment and the police jurors were elected from the newly created wards. The unanimous adoption of the reapportionment accompanied by the metes and bounds description of the newly created wards had the same practical effect as if the police jury had reapportioned itself.

The court in Williams v. Town of Many, 350 So.2d 224 (La.App. 3d Cir.1977) examining the local option election statutes, La. R.S. 26:581 et seq., held that a police jury may only call a local option election for the entirety of a ward.

In the instant case, the election was invalid as the area for which it was called was not a ward as required by La.R.S. 26:582. In other words, Old Ward 8 ceased to function as a ward or to serve any election purpose after the reapportionment in 1971 and in 1979.

Having determined that the election held in Old Ward 8 was invalid, it becomes necessary to ascertain the correct geographical area in which the local option election should be held in order to comply with La.R.S. 26:582. There appears to be some confusion as to the area for which a local option election may be called as the statute does not appear to recognize the creation of voting districts by reapportionment.

Ann Thomas, secretary of the Madison Parish Police Jury, testified that the voting districts were used for the election of police jurors or for any election in the parish. As noted earlier, Old Ward 8 had no political function whatsoever after the initial reapportionment.

Examining the statutes closely, it would appear that a voting district would correspond to the geographical area known as a ward. It is necessary to disregard the designation or labeling of an area as either a ward or voting district and to examine the exact political function of the particular area. A ward is defined as a police jury ward. Thus, a voting district is equivalent to a ward under the statute as it is an area from which a police juror is elected.

Defendant argues that plaintiff failed to prove that the result of the election would have been different, that is, there was substantial compliance with the local option election statutes.

As recognized in Niette v. Natchitoches Parish Police Jury, 348 So.2d 162 (La.App. 3d Cir.1977), the “... power to prohibit the sale of alcoholic beverages is properly exercised only if the Police Jury acts pursuant to the authority conferred by the Local Option Statutes ...” at p. 165. The statutes empower the police jury to call a local option election in a strictly specified area. Without this fundamental delegated power, any action taken by the police jury would be invalid. Therefore, since the police jury had no authority to call an election for less than a ward, the election is null and void. Whether or not there was substantial compliance with the election statutes is irrelevant without the initial authority to call the election for a particular area. In other words, the incorrect election area is not a technical or procedural irregularity to be considered for substantial compliance but rather a fatally defective error. Certainly, the proper voting unit or geographical area is one of the most critical elements in calling an election.

In light of the above findings, it is not necessary for this court to consider the procedural arguments advanced by the parties.

For these reasons, the judgment appealed is reversed and set aside. Judgment is rendered herein in favor of plaintiff declaring the local option election held in Ward 8 of Madison Parish, Louisiana, on January 15, 1983, to be null and void. In addition, judgment is rendered herein declaring null and void the ordinance adopted by the Madison Parish Police Jury to effectuate the results of the local option election. Costs on appeal and in the trial court are assessed against the Madison Parish Police Jury insofar as such costs may be taxed against a subdivision of the state of Louisiana.

Before JASPER E. JONES, FRED W. JONES, Jr., SEXTON and NORRIS, JJ., and PRICE, J. Pro Tern.

ON REHEARING

PRICE, Judge Pro Tern.

We granted a rehearing in this matter to correct what we now find to be an incorrect holding that a police jury voting district is equivalent to a ward for the purposes of holding a local option election under LSA-R.S. 26:582. This holding was unnecessary for the resolution of this case as we specifically found in our original opinion that original Ward Eight of Madison Parish was abolished by the action of the police jury on July 8, 1971, when the jury passed a resolution creating four wards for the parish to correspond to a federal reapportionment plan.

As noted in the original opinion, each of the newly created wards was fully described by a metes and bounds description. Police jurors were elected from the wards until further reapportionment into districts in 1979. Most notably, the tax records of the parish were maintained by wards and four wards had been on the assessment records since the seventies. There was no evidence that Old Ward Eight served any political purpose whatsoever after the police jury unanimously adopted the four ward system.

We continue to adhere to this finding that the number of wards were reduced from eight to four and that the ward lines were changed accordingly. Therefore, as we held in our original opinion, the election was invalid as the area for which it was called was not a ward as required by LSA-R.S. 26:582. The election could only be called for the entirety of one of the four wards of the parish which existed after July 8, 1971.

We acknowledge our error in attempting to relate a ward to a police jury election district in our original resolution of this issue. We are convinced that the two do not necessarily have to coincide.

We also find it appropriate to further clarify the reasons why the trial and appeal of this case was not controlled by the Election Code.

As noted in the original opinion, defendant argues that under the Election Code the plaintiff must prove that the result of the election would have been different, LSA-R.S. 18:1401(C) and further, both plaintiff and defendant argue that the time restrictions for an election contest in 18:1409 are applicable.

While this court has previously held that the Election Code governs local option elections, Troquille v. Red River Parish Police Jury, 430 So.2d 123 (La.App. 2d Cir.1983) writ denied 433 So.2d 181 (La.1983), Gruner v. Claiborne Parish Police Jury, 417 So.2d 18 (La.App. 2d Cir.1982) writ denied 420 So.2d 456 (La.1982), and Kelly v. Village of Greenwood, 357 So.2d 1182 (La. App. 2d Cir.1978), the facts of the instant case mandate a different conclusion.

The above cited cases all were concerned with irregularities which were not of a sufficient degree to justify declaring the election under attack an absolute nullity. The police jury derives its sole authority to call an election from LSA-R.S. 26:582. This statute grants the jury the power to call such an election for only a specified geographic area. The jury lacks the power or authority to call an election other than as provided by this statute.

When an election is called and held in an incorrect geographical area contrary to the provisions of the statute, there is a lack of authority to conduct the election and the election so held is an absolute nullity. Therefore, the Election Code has no applicability to an action brought to have the election declared a nullity under circumstances such as are present in this case. See Justice Dixon’s dissent in Kelly v. Village of Greenwood, 363 So.2d 887 (La.1978).

Subject to the modifications contained herein, our original opinion, and the judgment set forth therein, is reinstated.

AFFIRMED.

      . This court has held in numerous cases that the Election Code governs local option elections. See Troquille v. Red River Parish Police Jury, 430 So.2d 123 (La.App. 2d Cir.1983) and citations therein.