author: DANAHY, Judge.

text:
    Anne MAYBERRY, Appellant, v. Edward E. MAYBERRY, Appellee.
    No. 82-2330.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Michael J. Volpe of Monaco, Cardillo, Keith & Volpe, Naples, for appellant.
    Richard J. Aaron, Naples, for appellee.
   DANAHY, Judge.

In this dissolution of marriage case the wife challenges certain financial awards made to the husband in the final judgment. We find merit in only one challenge; we agree with the wife that it was error for the trial judge to award the husband exclusive possession of the former marital residence for so long as he wishes to reside there.

The parties were married for thirty-eight years and accumulated assets having a value of approximately $700,000. After the dissolution of marriage, each will enjoy a fairly decent income from various investments. Thus the record does not support the conclusion that the husband is in need of any support from the wife.

In Duncan v. Duncan, 379 So.2d 949 (Fla.1980), our supreme court said that an award of exclusive possession of property subject to disposition in a dissolution proceeding should either be directly connected to the obligation to pay support or be temporarily necessary to prevent reduction in the value of the subject property. In the case before us, the husband tries to justify the award of exclusive possession to him as necessary to prevent a reduction in the value of the property. He points out that the final judgment requires him to keep the house in good repair as a condition of his possession. He further points out that the used housing market is in a depressed condition and that the trial judge was attempting to protect the value of the property by denying the wife the unfettered ability to force partition at any time. The husband contends that the Duncan case recognized that a failure to award exclusive possession would likely result in partition, triggering a significant relocation expense to the spouse in possession.

We are not persuaded by the husband’s arguments that the award of exclusive possession to him can be justified under the Duncan rule.

The husband further attempts to justify the award on the additional ground that it was for the purpose of balancing the fact that the wife had purchased a condominium unit with marital funds, which she titled in her name only. He argues that the trial judge would have been justified in awarding some interest in the condominium to the husband, either as lump sum alimony or as a special equity. The husband did not, however, raise these points by way of cross-appeal. He simply says that the trial judge arrived at an equitable distribution by awarding the husband possession of the marital home to balance the fact that the wife had the condominium unit in which to live.

This court has rejected the proposition that “equitable division or distribution” of marital assets is an independent vehicle for an award of property in a dissolution of marriage proceeding. We have said that the property of the parties must be disposed of by resort to the concepts of alimony and special equities. Powers v. Powers, 409 So.2d 177 (Fla. 2d DCA 1982); Hu v. Hu, 432 So.2d 1389 (Fla. 2d DCA 1983).

We hold, therefore, that the award to the husband of exclusive possession of the former marital residence was error and we reverse the final judgment to that extent. In all other respects, the final judgment is affirmed.

AFFIRMED in part and REVERSED in part.

OTT, C.J., and SCHOONOVER, J., concur.


source: Caselaw Access Project

author: SCHEB, Acting Chief Judge.

license: Public Domain

text:
    SARASOTA SURF VACATION RENTALS, INC., G. & B. Properties, Inc., and Rosie A. Turner, Appellants, v. FLORIDA DEPARTMENT OF REVENUE, Appellee.
    No. 82-2685.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.

      David W. Wilcox of Icard, Merrill, Cullis, Timm & Furen, P.A., Bradenton, for appellants.
    Jim Smith, Atty. Gen., and Thomas L. Barnhart, Asst. Atty. Gen., Tallahassee, for appellee.
   SCHEB, Acting Chief Judge.

In this appeal from a final order of the Department of Revenue, appellants contend that they have been denied a rule-making hearing under section 120.54(3), Florida Statutes (1981), as well as a “draw-out” hearing pursuant to section 120.54(16), in respect to an amendment to Rule 12A-1.61, Florida Administrative Code.

The Department of Revenue (DOR) published notice on October 1, 1982, that it intended to adopt an amendment to Rule 12A-1.61, Florida Administrative Code. This rule concerns the imposition and collection of a sales tax on rentals of condominium units where the rental period is less than six months. A timely request for a rule-making hearing was filed pursuant to section 120.54(3). Thereafter, appellants, who are the owners or agents for individually owned condominium units, requested a draw-out proceeding pursuant to section 120.54(16). This involves a separate formal hearing under section 120.57 when an affected party demonstrates to the agency that the usual rule-making proceedings are inadequate to protect its interests.

DOR proceeded to adopt the proposed amendment on November 9, 1982, without further notice to appellants. Appellants, however, attended and were heard at the meeting at which the rule was adopted. Therefore, DOR argues: (1) appellants cannot now challenge the irregularity of the rule-making procedures, and (2) by failing to request a formal hearing under section 120.57 pursuant to section 120.54(16) at that time, appellants cannot complain of being denied a draw-out hearing.

Appellants were at least entitled to notice of a hearing under section 120.54(3), and their attendance at an unnoticed meeting was not an acceptable substitute for DOR’s failure to comply with the statutory requirement of giving affected parties notice and an opportunity to be heard prior to adoption of the rule. We agree with the fifth district that the procedure by which the amendment to the rule was adopted was fatally flawed by material error and, therefore, the amendment to the rule is invalid. Association of Condominiums, Inc. v. Department of Revenue, 431 So.2d 748 (Fla. 5th DCA 1983).

At this point it is premature to determine whether appellants will qualify for a draw-out hearing pursuant to section 120.57. Should DOR renew proceedings, the answer to that question will depend on the extent to which the appellants are able, and are permitted, to make an effective presentation at the section 120.54(3) hearing. Balino v. Department of Health & Rehabilitative Services, 362 So.2d 21 (Fla. 1st DCA 1978), cert. denied, 370 So.2d 458 (Fla.1979).

REVERSED.

RYDER and CAMPBELL, JJ., concur.

      . After oral argument on June 6, 1983, we were advised that the amendment to Rule 12A-1.61 had been declared invalid on February 17, 1983, by the Division of Administrative Hearings on the ground that the amendment constituted an invalid exercise of delegated legislative authority. The Department of Revenue has challenged this ruling in the First District Court of Appeal (Case No. AR-266). Therefore, we do not regard the issue raised by appellants as being moot at this time.


author: RYDER, Judge.

text:
    Stuart A. DUTCHER, Appellant, v. The ESTATE OF Loreta B. DUTCHER, Appellee.
    No. 82-2688.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Craig C. Villanti, New Port Richey, for appellant.
    W. Lowell Bray, Jr. of Allgood, McPherson, Bray & Misemer, New Port Richey, for appellee.
   RYDER, Judge.

Stuart Dutcher, the only child of Loreta B. Dutcher, appeals from an order holding that his children (Loreta Dutcher’s grandchildren) are the principal beneficiaries of the decedent’s estate. We reverse.

This case provides yet another example of the difficulties which might arise when a testatrix seeks to dispose of her property by way of a do-it-yourself will. In the accurate words of the trial court: “This court has seen many ‘do-it-yourself’ wills in the past twenty-five years, but it would be difficult to recall a self-prepared will as poorly written as the will in issue.”

Simply put, the will of Loreta Dutcher attempts to devise and bequeath the majority of her estate either to appellant or to appellant’s children. The two provisions involved appear to conflict due to poor wording by the testatrix. Furthermore, each provision is itself somewhat ambiguous. Because of these difficulties, appellant, as personal representative of the estate, filed a petition for determination of beneficiaries and for appointment of a guardian ad litem. A guardian ad litem was appointed to represent appellant’s minor children.

Two hearings were held before the trial court. The testimony of four witnesses, including appellant and his wife, was admitted into evidence. The testimony dealt with the decedent’s intentions concerning the ultimate disposition of her property. The testimony indicated that it was the decedent's wish to devise and bequeath her property to appellant, and if appellant predeceased her, the property would be left to appellant’s children. The good relationship between the testatrix and appellant was also noted.

The trial court found that two paragraphs of the will “appear to conflict,” and while both are difficult to understand, one “is so obscure as to make its meaning a nullity.” The court then held that the legal children of appellant are the principal beneficiaries of the estate. Following the denial of appellant’s motion for rehearing, appellant timely filed this notice of appeal. We have jurisdiction.

It is well settled that the primary consideration in construing a will is ascertaining the intent of the testatrix. The will as a whole should be considered to determine the testatrix’ intent and her general scheme of disposition. If possible, and when consistent with law and public policy, the testamentary intent of the testatrix is to be effectuated. In Re Estate of Wagner, 423 So.2d 400 (Fla. 2d DCA 1982); In Re Estate of Lesher, 365 So.2d 815 (Fla. 1st DCA 1979); § 732.6005, Fla.Stat. (1981).

In the case sub judice, the intent of the testatrix is not “crystal clear.” Nevertheless, such a difficulty will not require a holding that the will fails and the property must be disposed of according to rules of intestate succession. Intestacy is not favored over a disposition under a will where construction of the will leads to a valid testamentary disposition. In Re Gregory’s Estate, 70 So.2d 903 (Fla.1954); In Re Estate of Gold, 189 So.2d 905 (Fla. 3d DCA 1966).

In considering the validity of a testamentary disposition where there is an ambiguity in a will, extrinsic evidence is admissible into evidence. The evidence may be admitted to explain or resolve the uncertainty or doubt so that the probate court will be better able to effectuate the true dispositive intent of the testatrix. In Re Estate of Wood, 226 So.2d 46 (Fla. 2d DCA), cert. denied, 232 So.2d 181 (Fla.1969); In Re Estate of Mullin, 133 So.2d 468 (Fla. 2d DCA 1961). See also In Re Estate of Rice, 406 So.2d 469 (Fla. 3d DCA 1981), petition for review denied, 418 So.2d 1279, 1280 (Fla.1982); In Re Estate of Roberts, 367 So.2d 269 (Fla. 3d DCA), cert. denied, 378 So.2d 348 (Fla.1979).

In this case, the trial court admitted extrinsic evidence to assist in resolving uncertainties contained in the will, and to aid in the determination of the intent of the testatrix. While the record presented to this court does not reflect any proper objection to the taking of the testimony and its admission into evidence, even if there had been a timely and proper objection it is clear that the evidence was correctly admitted.

All of the testimony presented to the court to aid in discerning the intent of the testatrix supports the conclusion that appellant is the principal beneficiary of the will. In declaring that the provision which appears to make appellant the principal beneficiary is a nullity, the trial court ignored the properly admitted evidence and chose, without justification, one provision of the will over another. The holding of the trial court that the children of appellant are the principal beneficiaries is unsupported by the record. See In Re Estate of Zimmerman, 84 So.2d 560 (Fla.1956).

One other principle in the construction of wills applies to this case. If there is an irreconcilable conflict between two provisions in a will, the latter provision will usually prevail as being the last expression of the intention of the testatrix where the provisions refer to the same subject matter. Of course, where possible, the two provisions are to be construed in such a manner as to harmonize them; if this is not possible, the first provision is rejected only to the extent necessary to give effect to the latter provision. In Re McMillan’s Estate, 158 Fla. 898, 30 So.2d 534 (1947); In Re Estate of Rogers, 180 So.2d 167 (Fla. 2d DCA 1965).

Paragraph “thirdly” in the will of the testatrix could be read as devising and bequeathing the decedent’s property to appellant’s children. Paragraph “sixthly” could be read as devising and bequeathing the decedent’s property to appellant. Even without considering the testimony presented to the trial court, and taking into consideration the “four corners” of the will, the enunciated principle dealing with the irreconcilable conflict of two provisions in the will would require reversal of the trial court. See In Re Estate of Zimmerman, supra. The appellant should have been declared beneficiary of the will. The extrinsic evidence confirms this result.

For the foregoing reasons, we hold that the trial court erred in determining that appellant’s children are the principal beneficiaries under the will of Loreta B. Dutcher. We further hold that appellant is the principal beneficiary of the estate of Loreta B. Dutcher.

REVERSED.

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

      . The first hearing was unreported; however, the parties stated on the record, at the second hearing, the substance of the testimony from the first hearing.

      . Fla.R.P. & G.P. 5.100; Fla.R.App.P. 9.030(b)(1)(A).

      . While the testimony of appellant and his spouse may be seen as self-serving, the testimony of the other two individuals, both of whom were witnesses to the execution of the will, supports the result which we reach.


author: BOARDMAN, Judge.

text:
    Lyle Joseph PARKS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2807.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.

      Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant Lyle Joseph Parks contends that possession of cannabis under Section 893.13(l)(e), Florida Statutes (1981), is not a lesser included offense of possession with intent to sell or deliver under Section 893.-13(l)(a)2. Thus, according to appellant, the trial court erred in convicting him of simple possession when he was charged with possession with intent to sell or deliver. We agree and reverse.

Appellant was arrested as a result of a “reverse sting” drug sale operation after he and a companion purchased thirty-eight pounds of marijuana from an undercover narcotics investigator. He was subsequently charged with possession with intent to sell or deliver.

During appellant’s ensuing jury trial, the state requested an instruction on simple possession as a “necessarily lesser included offense” of the crime charged. Defense counsel initially opposed this instruction on the basis that both crimes were equal penalty third degree felonies, and that possession thus was not a lesser offense than another crime carrying the same punishment. Counsel later capitulated to the state’s request, however, stating that he was unable to argue with the supreme court’s approved schedule of lesser included offenses, which listed possession as a category one lesser included offense of possession with intent to sell or deliver. The trial court gave the requested instruction, and the jury found appellant guilty of simple possession.

On appeal, appellant directs this court’s attention to the supreme court’s decisions in State v. Carpenter, 417 So.2d 986 (Fla.1982), and Ray v. State, 403 So.2d 956 (Fla.1981), which we find dispositive of the issues raised.

In Carpenter, the supreme court disagreed with the contention that an equal penalty offense could be a lesser included offense of the crime charged. The supreme court held that the lesser included offense exception to separate sentencing under section 775.021(4) was inapplicable where two crimes carry the same penalty “since one crime is not the lesser of the other.” 417 So.2d at 987. This statement, coupled with similar language in Ray, 'supports appellant’s assertion that a crime carrying a penalty of equal severity to that for the offense charged cannot be a lesser included offense of the original charge.

Under the present statutory scheme, possession of cannabis and possession of cannabis with intent to sell or deliver are both third degree felonies, carrying maximum sentences of five years imprisonment. In light of these coterminous penalties and the Carpenter and Ray decisions, we are compelled to conclude that possession of cannabis cannot be a lesser included offense of possession of cannabis with intent to sell or deliver, notwithstanding the basic logic of such a correlation. Thus, like the supreme court in Ray, we reverse appellant’s conviction of a crime for which he was not charged which is not a lesser included offense of the charged offense.

We need not address the sufficiency or possible waiver of defense counsel’s objection to the erroneous instruction at trial inasmuch as the limitations imposed upon the fundamental error doctrine in Ray are not present in the instant case. Furthermore, we need not address appellant’s entrapment argument.

Accordingly, appellant’s judgment and sentence are REVERSED and the cause REMANDED with directions to discharge appellant.

OTT, C.J., and LEHAN, J., concur.

      . A controlled substance described in Section 893.03(l)(c)3, Florida Statutes (1981).

      . Section 893.13(l)(e), Florida Statutes (1981) provides:
      It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision is guilty of a felony of the third degree ....

      . Section 893.13(l)(a)2, Florida Statutes (1981) provides:
      (l)(a) Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to:
      2. A controlled substance named or described in s. 893.03(l)(c), (2)(c), (3), or (4) is guilty of a felony of the third degree....

      . See In re Florida Standard Jury Instruction in Criminal Cases, 431 So.2d 594 (Fla.1981).

      . The judgment erroneously identified possession as a violation of section 893.13(l)(a)2. It is clear, however, that the jury found appellant guilty of violating section 893.13(l)(e).

      . The first district reached the same conclusion in Anderson v. State, Nos. AO-281 and AO-282 (Fla. 1st DCA July 18, 1983), n. 3.

      . While it is not our prerogative to question the legislature’s choice of sanctions with respect to possession of cannabis and possession of cannabis with intent to sell or deliver, we cannot help but note that a cognizable distinction exists between these crimes which is not reflected . in their respective penalties. The state can achieve the same result by charging and proving a violation of section 893.13(l)(e) as by charging and proving a violation of section 893.13(l)(a)2, without undertaking the burden of establishing the offender’s intent to market his contraband. Yet an individual possessing a large quantity of cannabis with the almost certain intent of distributing it poses a greater threat to society than does his counterpart who possesses slightly more than 20 grams, the minimum amount required for prosecution under section 893.13(l)(e). See section 893.-13(l)(f).


author: GRIMES, Judge.

text:
    Ricky Andrew BLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 83-209.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was convicted of two counts of sale of a substance in lieu of a controlled substance and one count of selling a prescription drug without a prescription. We affirm the former but reverse the latter.

Sale of a substance in lieu of a controlled substance

The evidence clearly reflects that in two instances appellant agreed to sell a police informant a controlled substance and in lieu thereof sold him a noncontrolled substance. We reject appellant’s contention that section 817.563, Florida Statutes (1981), is unconstitutionally vague and over-broad.

Sale of prescription drug without a prescription

Section 465.015(2)(c) under which appellant was convicted reads as follows:

(2) It is unlawful for any person:
(c) To sell or dispense drugs as defined in s. 465.003(7) without first being furnished with a prescription.

Appellant argues that chapter 465 is only directed toward the regulation of pharmacists or those holding themselves out as pharmacists. He points out that he was not a pharmacist nor represented himself to be one and that he did not vouch for the medicinal properties of his wares. In support of his position, appellant refers to the statement of legislative intent found in section 465.002, Florida Statutes (1981):

465.002 Legislative findings; intent. —The Legislature finds that the practice of pharmacy by unskilled and incompetent practitioners presents a significant danger to the public health and safety. The Legislature finds further that it is difficult for the public to make an informed choice about pharmacists and that the consequences of a wrong choice could seriously endanger their health and safety. The sole legislative purpose for enacting this chapter is to ensure that every pharmacist practicing in this state and every pharmacy meet minimum requirements for safe practice. It is the legislative intent that pharmacists who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.

The state responds by suggesting that appellant was a “street pharmacist” and refers to portions of a tape of the transaction in which appellant seems to be trying to sell a recipe for preparing a drug. Be that as it may, section 465.015(2)(c) is quite specific and does not preclude the prosecution of a person such as appellant.

However, in order to convict appellant for violating section 465.015(2)(c), the state had to prove the drug which appellant sold was among those defined in section 465.003(7), Florida Statutes (1981). Section 465.003(7) contains the following definition:

(7) “Medicinal drugs” or “drugs” means those substances or preparations commonly known as prescription or legend drugs which are required by federal or state law to be dispensed only on a prescription, but shall not include patents or proprietary preparations as hereafter defined.

The state’s drug chemist was unable to say whether the substance sold by appellant was a prescription drug. Over appellant’s objection the court, in reliance upon an excerpt from the Physicians Desk Reference book that the substance required a prescription, took judicial notice that it was a prescription drug for purposes of the trial. At the outset we note that the court did not scrupulously follow the procedural requirements of section 90.204, Florida Statutes (1981), for taking judicial notice. In any event we do not believe that the court could properly take judicial notice that the substance was “required by federal or state law to be dispensed only on a prescription” solely by resort to the statement in the Physicians Desk Reference. See § 90.-202(12), Fla.Stat. (1981). The appropriate procedure would have been to take judicial notice of the applicable federal or state law.

Appellant’s convictions for selling a substance in lieu of a controlled substance are affirmed. We reverse the conviction for selling a prescription drug without a prescription.

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


text:
    STATE of Florida, Appellant, v. Thomas DUDA, Appellee.
    No. 83-530.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellee.
   GRIMES, Judge.

The state appeals an order suppressing a marijuana plant and incriminating statements made by the appellee.

The facts are not in dispute. At approximately 1:20 a.m. on November 15, 1982, Officer John Corbett of the St. Petersburg Police Department responded to a radio bulletin concerning a domestic disturbance or possible fight at a residence. He was quickly joined by two other officers on patrol. After arriving at the scene, Corbett heard shouting coming from the area of the rear of the house and the back yard. He proceeded around the building to a carport which led to a back door. There he met a woman. As the shouting continued, she informed him that appellee and his brother were arguing inside. She called to the men, and Officer Corbett then stepped through the back door to speak with them. After he was satisfied that the disturbance had ended, Officer Corbett turned to leave.

As Officer Corbett was walking through the carport, Officer Fridlund, who had stayed outside in a backup capacity, advised him that there was something he should see. Officer Fridlund then pointed to a marijuana plant approximately four feet high growing from a white plastic bucket. The plant was readily visible from the driveway and was ten to twelve feet from the house. The woman had previously informed Officer Fridlund that the plant belonged to appellee. Officer Corbett then returned to the house to question appellee. After receiving Miranda warnings, appellee admitted that the plant belonged to him.

Officers Corbett and Fridlund had inadvertently sighted the marijuana plant in plain view. They were able to seize the plant, however, only if they had the legal right to be in appellee’s back yard. State v. Morsman, 394 So.2d 408 (Fla.1981).

Although there is a reasonable expectation of privacy in the back yard of a residence as an area not generally viewed by the public, State v. Morsman; Jennings v. State, 419 So.2d 750 (Fla. 2d DCA 1982), that expectation can give way in an emergency situation. The supreme court has stated that the police have the inherent right to enter and investigate an emergency, without an accompanying intent either to seize or arrest, as part of their duties as peace officers. Zeigler v. State, 402 So.2d 365 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982). Their determination of the existence of an emergency is to be measured by the reasonableness of their belief at the time, not the existence of an emergency in fact. See Long v. State, 310 So.2d 35 (Fla. 2d DCA 1975); State v. Hetzko, 283 So.2d 49 (Fla. 4th DCA 1973). In the instant case we find that a potential emergency situation had existed which justified the presence of the police in appellee’s back yard.

Officers Corbett and Fridlund had responded to a call of a disturbance or possible fight. When they arrived at the address, they could hear shouting from the rear of the house. They were unaware of the number of persons involved or the reason for the controversy. Sensing a need for immediate action, they proceeded without a warrant to the back of the house. The officers’ decision to go directly to the location at which the disturbance appeared to be occurring rather than knocking at the front door cannot be faulted. Since the officers acted under exigent circumstances, their presence in the back yard was justified. At this point, the marijuana plant, being in plain view, was properly seized.

The order granting the motion to suppress is reversed.

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


author: HOBSON, Acting Chief Judge.

text:
    Johnny Ray OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 83-613.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

The appellant, Johnny Ray Owens, appeals from convictions after jury trial of the crimes of robbery with a firearm in violation of section 812.13, Florida Statutes (1981), and possession of a firearm by a convicted felon in violation of section 790.-23, Florida Statutes (1981). We reverse and remand.

The first point raised by appellant is that the trial judge committed reversible error by failing to instruct the jury upon request timely made on the lesser included offense of aggravated assault. We agree.

The court in Brown v. State, 206 So.2d 377 (Fla.1968), established four discret categories of attempts and lesser offenses upon which the jury may be instructed. The Supreme Court of Florida has recently consolidated the four categories into two:

(1) Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses. (2) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.

In the Matter of the Use of the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, Nos. 56,734 and 58,799 (Fla. April 16, 1981).

An aggravated assault is an assault with a deadly weapon without intent to kill or an assault with intent to commit a felony. § 784.021, Fla.Stat. (1981). It is a category (2) lesser offense of robbery. Jackson v. State, 355 So.2d 137 (Fla. 3d DCA 1978), cert. denied, 361 So.2d 835 (Fla.1978); Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses. That is, it may be a lesser included offense if the information alleges all of its essential elements and if the evidence supports it. State v. Terry, 336 So.2d 65 (Fla.1976).

At the charge conference in the instant case, the trial judge determined that although the evidence presented at trial supported aggravated assault, the essential elements of aggravated assault were not alleged in the information.

We have made a careful review of the information and find that the essential elements of aggravated assault are set forth. The information expressly alleges an assault and also alleges the use of a deadly weapon. The fact that the information alleges that appellant “carried a deadly weapon” rather than “used a deadly weapon” does not nullify an essential element of aggravated assault. Thus, all the essential elements of an aggravated assault are alleged, as well as supported by the evidence. It was reversible error to deny the requested instruction.

Because we have ruled in the appellant’s favor on the first issue raised on appeal, we need not consider appellant’s second point.

REVERSED AND REMANDED FOR NEW TRIAL.

RYDER and CAMPBELL, JJ., concur.


author: HERSEY, Judge.

text:
    Larry D. SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 82-689.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    Richard L. Jorandby, Public Defender, Marcy K. Allen and Cathleen Brady, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellant’s conviction is affirmed; however, we remand with instructions to correct the sentence by striking the retention of jurisdiction as to Count III, see Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982), and by reducing the retention of jurisdiction to fifteen years in accordance with Section 947.16(3), Florida Statutes (1981).

AFFIRMED IN PART: REVERSED IN PART and REMANDED.

GLICKSTEIN and WALDEN, JJ., concur.


text:
    Lewis GERBER, Appellant, v. Benita Barbara GERBER a/k/a Benita Gerber, Appellee.
    No. 82-1818.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    Martin G. Brooks of Martin G. Brooks, P.A., Hollywood, for appellant.
    James Fox Miller of Miller & Schwartz, P.A., Hollywood, for appellee.
   HERSEY, Judge.

It appears that our mandate in Gerber v. Gerber, 392 So.2d 317 (Fla. 4th DCA 1980) has been followed in letter, as appropriate and possible, and in spirit. We affirm. Ca-nakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

AFFIRMED.

GLICKSTEIN and WALDEN, JJ., concur.


text:
    O’Gean HALL, Petitioner, v. Louie L. WAINWRIGHT, Secretary of the Department of Corrections, Respondent.
    No. 82-2035.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    O’Gean Hall, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.
   HERSEY, Judge.

We grant the petition for writ of habeas corpus to afford belated review of a summary denial of a motion for relief under Rule 3.850, Florida Rules of Criminal Procedure. Denial was based upon a ruling that ineffective assistance of counsel should have been raised by direct appeal and was therefore an inappropriate basis for a motion under the rule. This being a misconception of the law, we reverse and remand for a hearing on the merits of the motion.

REVERSED.

GLICKSTEIN and WALDEN, JJ., concur.


author: PER CURIAM.

text:
    Ronald Joseph SELINKA, Appellant, v. STATE of Florida, Appellee.
    No. 82-2310.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    Robert T. Adams, Jr., Marianna, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm. However, said affirmance is without prejudice to appellant’s right to file a motion for post conviction relief per Florida Rule of Criminal Procedure 3.850 as concerns his assertion that he was not given credit for time served as provided by § 921.161(1) Florida Statutes (1981).

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.


text:
    Louise A. TANNARIELLO, Appellant, v. FEDERATION OF PUBLIC EMPLOYEES and Unemployment Appeals Commission, Appellees.
    No. 82-2473.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    Robert W. Schlorff, II, Fort Lauderdale, for appellant.
    Dorian K. Damoorgian of Manners, Amoon & Tucker, Miami, for appellee— Federation of Public Employees.
    Louisa E. Hargrett, Tallahassee, for ap-pellee — Unemployment Appeals Com’n.
   HERSEY, Judge.

Appellant resigned from her employment giving as her reason fear for her personal safety. Her application for unemployment compensation has been unsuccessful at each level of the system so that it now reposes before this court. The issue has been and remains whether appellant had good cause to resign.

Chapter 443, Florida Statutes, known as the Unemployment Compensation Law, provides benefits for persons unemployed through no fault of their own. Thus, workers who voluntarily leave their employment are not entitled to benefits unless such separation was for good cause. § 443.101(1), Fla.Stat. (1981). We have previously interpreted these provisions, in part, as follows:

What is the criteria to be used in determining the question of good cause?
To voluntarily leave employment for good cause, the cause must be one which would reasonably impel the average able-bodied qualified worker to give up his or her employment. Sun Shipbuilding & Dry Dock Co. v. Unemployment Compensation Board of Review, Pa.1948, 358 Pa. 224, 56 A.2d 254. See also: Gatewood v. Russell, Colo.App.1970 [29 Colo.App. 11], 478 P.2d 679; Geckler v. Review Board of Indiana Employment Security Division, Ind.1963, 244 Ind. 473, 193 N.E.2d 357. Smith v. Unemployment Compensation Board of Review, 1956, 181 Pa.Super. 185, 124 A.2d 707; Hemmings v. Unemployment Compensation Board of Review, 1961, 196 Pa.Super. 604, 175 A.2d 916.
The applicable standards are the standards of reasonableness as applied to the average man or woman, and not to the supersensitive. Andala v. Ganus, Ala. 1959, 269 Ala. 571, 115 So.2d 123. The burden is on the claimant to prove that he has met the statutory eligibility requirements. Newkirk v. Florida Industrial Commission, Fla.App.1962,142 So.2d 750; Florida Industrial Commission v. Garlante, Fla.1955, 84 So.2d 1.

Uniweld Products, Inc. v. Industrial Relations Commission, 277 So.2d 827, 829-30 (Fla. 4th DCA 1973).

This court must determine whether an employee’s fear for personal safety constitutes “good cause.” While no Florida court has spoken on the subject, the majority of jurisdictions which have considered the issue have held that a reasonable fear for one’s personal safety may, under appropriate circumstances, constitute good cause for leaving employment. See, e.g., Fried v. Ross, 54 A.D.2d 521, 386 N.Y.S.2d 245 (1976); Goldberg v. Levine, 53 A.D.2d 731, 384 N.Y.S.2d 42 (1976); Ferguson v. Dept. of Employment Services, 311 Minn. 34, 247 N.W.2d 895 (1976); Dwight Mfg. Co. v. Long, 36 Ala.App. 387, 56 So.2d 685 (1952); Boogay v. Pennsylvania, 46 Pa.Commw. 51, 405 A.2d 1112 (1979). We elect to follow the view expressed by these cases and do so here.

Subsequent to a hearing, the appeals referee disposed of the issue of good cause in the following language:

The claimant quit the job anticipating harm, and the employer had little control over either her fears or the social makeup of individuals congregating in the employer’s geographic location which constitutes a portion of downtown Fort Laud-erdale, Florida near other businesses and office locations. Her fears were speculative; her reaction to her working environment was supersensitive. There was no evidence of probative value to prove that the employer violated her terms of employment or caused her leaving to be necessitrous or compelling. Accordingly, it must be concluded that the claimant voluntarily quit the job for personal reasons without good cause attributable to the employer.

We note that the emphasis is placed upon the employer’s freedom from fault rather than upon the reality of the danger to the appellant. It is of course true (and we assume that it would usually be true) that the employer had little control over the employee’s fears “or the social makeup of individuals” in the neighborhood. The point is that the employer did have sole and absolute control over whether appellant was required to work alone in a vacant building from 4:30 p.m. to 5:00 p.m. each afternoon in a neighborhood whose character at that hour is at least suspect. Without detailing the incidents which gave birth to appellant’s apprehensions, we find them more than sufficient to support the proposition that one subjected to them would have a reasonable expectation of danger sufficient to support a finding of good cause for voluntary termination of employment.

Recapitulating, we believe the appeals referee (and consequently the Unemployment Appeals Commission on review) has misconstrued the law thereby placing a burden on appellant to show that her fears were caused by some fault of the employer. In addition, we find that the referee incorrectly applied the law by holding that appellant’s fears were not reasonable. But for the former error we would not be inclined to reverse for the latter, that constituting a substitution of our judgment on the facts for that of the lower tribunal. However, finding error in the first instance we feel free to comment on the additional misconception as it may serve some useful purpose in further or other proceedings.

We reverse and remand with instructions to approve appellant’s application for unemployment compensation, if she otherwise qualifies.

REVERSED and REMANDED.

LETTS and WALDEN, JJ., concur.


author: CALOGERO, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Stanley A. SMITH.
    No. 82-KA-1513.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick and John Sin-quefield, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Andrew J. Bennett, Jr., Moore & Walters, M. Michele Fournet, Frank J. Saia, Keith B. Nordyke, Baton Rouge, for defendant-appellant.
   CALOGERO, Justice.

Defendant, Stanley Smith, was convicted of first degree murder, in violation of La. R.S. 14:30, and sentenced to life imprisonment upon recommendation of the jury. On appeal defendant argues forty-six assignments of error. We find that none of the assignments present reversible merit. One argument (three assignments of error), however, requires that we remand the case to the trial court for additional proceedings.

In this opinion we will treat defendant’s common assignments relative to the trial court’s denial of two defense challenges for cause to prospective jurors who knew potential witnesses. We will also consider the defendant’s assignments which prompt our remanding the case. The latter concern the refusal of the trial judge to order production of the juvenile records of the state’s chief witness.

We find that none of the remaining assignments present reversible error, nor do any involve legal issues not governed by clearly established principles of law. They will be treated in an appendix which will not be published, but which will comprise part of the record in this case.

FACTS

Both Stanley Smith and Beth Bourgeois were arrested in connection with the May 7, 1981, murder of Arvid Mikkelson, a Norwegian seaman. Pursuant to a plea bargain with the District Attorney’s office Ms. Bourgeois agreed to testify against the defendant. In return for her testimony the charges against Ms. Bourgeois for armed robbery and first degree murder were reduced to accessory after the fact to first degree murder. In addition the prosecutor agreed to recommend that she receive no more than five years at hard labor upon entry of a guilty plea to the reduced charge and a guilty plea to one count of distribution of marijuana.

At trial Ms. Bourgeois, who was the prosecution’s key witness, testified as follows: On the night of May 7,1981, she received a phone call from the defendant requesting that she meet him at a certain lounge. The defendant told her that there was a man in the bar (Mikkelson) flashing money and that he (defendant) wanted Ms. Bourgeois’ assistance in coaxing the man from the bar in order to take his money. Ms. Bourgeois met the defendant at the bar. The two had agreed that she would bring the victim to the house shared by her and the defendant, and that the defendant would be waiting at the house where they would then rob the victim. Shortly after the victim arrived at the house with Ms. Bourgeois a fight initiated by the defendant ensued, resulting in the victim’s death. Ms. Bourgeois testified that although she enticed the victim to the house and later aided in disposing of the body, it was the defendant who actually murdered him.

ASSIGNMENTS OF ERROR NOS. 4, 37 and 38

By these assignments the defendant challenges the trial judge’s refusal to require the state to produce the juvenile records of its chief witness, his denial of defendant’s request for an instanter subpoena duces tecum to obtain the juvenile records and his refusal to permit defense counsel to cross-examine the witness about her juvenile record.

Prior to the trial of this matter the defendant requested copies of the juvenile records of Beth Bourgeois. When the prosecutor responded that he did not have access to these records the trial judge ruled that the defendant was not entitled to them. During the trial the judge denied the defendant’s request for an instanter ■subpoena duces tecum to obtain the juvenile records of Ms. Bourgeois. Defense counsel protested claiming that he wanted the records in order to probe the witness for bias. On appeal the defendant contends that the procurement of the records was essential to his constitutional right to confrontation.

When a defendant moves for production of the juvenile records of a witness the trial court is called upon to determine whether the impeachment value of these adjudications is outweighed by the state’s interest in maintaining the confidentiality of juvenile records. Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347 (1974); State v. Toledano, 391 So.2d 817, 820 (La.1980).

In Davis, the Supreme Court, in addressing this balance, stressed the importance of the defendant’s right to confrontation and noted that a primary interest secured by it is the right of cross-examination. The Court observed that cross-examination is the chief means by which the credibility of a witness and the truth of his testimony are tested. The Court proceeded to state that:

One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. 415 U.S. at 316, 94 S.Ct. at 1110.

In Davis the Court held that on the facts of that case the state’s interest in protecting the confidentiality of juvenile records was subordinate to the constitutional right of effective cross-examination for bias of an adverse witness.

Similar issues were faced by this Court in State v. Toledano, supra, and State v. Hillard, 398 So.2d 1057 (La.1981). In Toledano we stated that when the defense requests production of the juvenile’s records during cross-examination of an alleged co-participant a previous juvenile adjudication may be sufficiently probative of the witness’s truthfulness to require disclosure. Accordingly, we held that the trial court erred in denying the defense motion without first examining the juvenile record. State v. Toledano, supra at 820-821.

The correct procedure, as outlined in To-ledano, is that upon request by defense counsel for specific relevant evidence with possible impeachment value, the trial judge must order submission of the witness’ record for an in camera inspection to determine its materiality. The issue then becomes whether the witness’ juvenile adjudications have such discrediting value that there is a reasonable likelihood it would affect the verdict. In that event it must be viewed as evidence favorable to the defendant. State v. Toledano, supra at 820.

In State v. Hillard, supra, the state’s case depended primarily on a witness who, like Beth Bourgeois in this case, was an alleged co-participant in the crime for which the defendant was on trial. The trial court refused to allow questioning of the witness about his juvenile record during cross-examination. In remanding the case on this issue we noted that although there was independent evidence presented at trial which perhaps had damaged the witness’s credibility, this reality did not alone obviate the need for an examination by the trial judge of the juvenile record of that witness. The critical question in cases involving a witness’s juvenile record, and the sixth amendment right to confrontation is whether the defendant will be precluded from utilizing a method of impeachment that would be effective in the circumstances of his case were the juvenile record available to defendant. State v. Hillard, supra at 1060-1061.

In the instant case the jury was exposed to some evidence which might have discredited Ms. Bourgeois’ testimony. The plea bargain agreement, which tends to show that she had an interest in testifying against the defendant, was brought out at trial by the prosecutor. Additionally, defense counsel questioned Ms. Bourgeois about a previous marijuana charge and was able to point out some minor inconsistencies between her testimony and prior statements. However, as we said in Hillard, although evidence revealing a particular juvenile record may not add to the impeachment which has taken place, a determination of whether it does can only be made after an examination of the juvenile record by the trial judge and preservation of it for our review. State v. Hillard, supra at 1060.

In the present case the trial court did not determine whether the co-participant witness had a record of juvenile adjudications. The prosecutor questioned the witness about her juvenile record, to which she responded that she had been in trouble once for running away from home. This limited exploration into the matter by the prosecutor is no substitute for an in camera inspection by the trial judge of the juvenile record of the co-participant whose testimony was so essential to the state’s case. Thus, this matter must be remanded for submission to the trial judge of Ms. Bourgeois’ record of juvenile adjudications. Upon review of the witness’ juvenile record the trial judge must determine whether the admission of its contents is required for a fair determination of the defendant’s guilt or innocence. Should he conclude that the evidence should have been admitted it will be necessary that he order a new trial. If, however, there are no juvenile adjudications, or if it is determined that the record is not sufficiently probative in connection with Ms. Bourgeois’ veracity, then the judgment of the trial court should be reinstated, reserving to the defendant the right to appeal such ruling. State v. Hillard, supra at 1061.

ASSIGNMENTS OF ERROR NOS. 14 and 21

By these assignments the defendant contends that the trial judge erred in denying his challenges for cause of two jurors, Mr. N.P. Adams and Mr. L. Achee, who knew potential witnesses. The defendant exercised a peremptory challenge against Mr. • Adams and had exhausted his remaining peremptory challenges at the time the challenge for cause as to Mr. Achee was denied by the trial judge. Thus, the defendant is properly before this Court. La.C.Cr.P. art. 800.

During voir dire examination it was discovered that prospective juror Adams worked for Dr. Guillory, the pathologist who would at trial testify concerning the autopsy report on the victim. It was also learned that prospective juror Achee knew some of the police officers who were to testify.

It is well settled that the trial judge has broad discretion in ruling on a challenge for cause and his ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Sugar, 408 So.2d 1329 (La.1982); State v. Lewis, 391 So.2d 1156 (La.1980); State v. Drew, 360 So.2d 500 (La.1978).

During voir dire examination the court, state and defendant questioned Mr. Adams concerning his employment relationship with Dr. Guillory and how it might affect his ability to serve as an impartial juror. After carefully reviewing the record in this case we are satisfied that the testimony on voir dire, taken as a whole, was sufficient to convince the trial judge that Mr. Adams could be fair and was competent to serve as a juror. The trial judge did hot err in denying defendant’s challenge for cause.

Likewise, we find that the voir dire examination of Mr. Achee was sufficient to establish that his acquaintance with potential law enforcement witnesses would not have interfered with his ability to serve as an impartial juror. Thus it cannot be said that the trial judge’s ruling constituted an abuse of discretion and reversible error.

Assignments of error Nos. 14 and 27 are therefore without merit.

In view of our above determinations concerning Assignments of Error Nos. 4, 37 and 38, and finding no reversible merit in any of defendant’s other assignments, we conditionally affirm the defendant’s conviction and remand the case to the trial court for further proceedings regarding Ms. Bourgeois’ juvenile record.

Decree

In accordance with the foregoing the defendant’s conviction is conditionally affirmed and the case is remanded to the district court for further proceedings.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; REMANDED.

WATSON, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I do not believe that introduction of Ms. Bourgeois’ juvenile record would create a reasonable doubt about guilt when evaluated in the context of the entire record. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Accordingly, I dissent from the remand. I would affirm the conviction and sentence.

      . This latter charge came about as the result of an incident unrelated to the present case.

      . The trial judge was no doubt influenced in part in this decision by the fact that Dr. Guidry was to give testimony simply of his pathological findings.


author: CALOGERO, Justice. BLANCHE, Justice MARCUS, Justice

text:
    Eugene MACON v. Louis COSTA.
    No. 82-C-2772.
    Supreme Court of Louisiana.
    Sept. 2, 1983.

      Mack E. Barham, David A. Marcello, Bar-ham & Churchill, New Orleans, for applicants.
    Thomas W. Tucker, New Orleans, for respondents.
   CALOGERO, Justice.

In December of 1979, the former Governor of the State of Louisiana appointed plaintiff, Eugene Macon, to a position as a member of the Board of Commissioners of the Orleans Levee Board. In October of 1980, the present Governor, who assumed office on March 10,1980, appointed defendant Louis Costa to the same levee board position. After taking his oath, Costa attempted to replace Macon, who thereupon filed this injunction suit. From a judgment granting a preliminary injunction in plaintiff Macon’s favor, defendant Costa appealed. The Court of Appeal, 420 So.2d 480, ruled in Costa’s favor. They reversed, set aside the trial court judgment, dissolved the preliminary injunction, and dismissed plaintiff Macon’s lawsuit. Rehearing was denied. We granted writs on application of Macon. He wants this Court to vacate the judgment of the Court of Appeal, and reinstate the injunction granted by the trial court.

The issue before us is whether Macon’s December, 1979, appointment and term of office are controlled by the general provisions of La.R.S. 38:281, or by the language of the more specific and later (1979) amended and reenacted La.R.S. 38:1233. R.S. 38:281, passed in 1975 (Act 99) as a statutory codification of Article XVI, § 1 of the 1921 Louisiana Constitution (La.R.S. 38:281 was amended in 1977 (Act 256), 1978 (Act 314) and 1979 (Act 676)), dictated that all members of the Boards of Commissioners of levee districts (all members of all levee boards) shall serve terms concurrent with that of the Governor appointing them (the 1977 amendment changed it to “shall serve at the pleasure of the Governor”). La.R.S. 38:1233, on the other hand, affords Orleans Levee District Commissioners “a term of four years and until their successors are appointed and qualified.” (emphasis added.)

Plaintiff contends that La.R.S. 38:1233, the later and more specific statute, controls; that it provides for a fixed four year term; and that the 1974 Louisiana Constitution Article IV, § 5(I)’s prohibition against the Governor’s removing from office a person appointed for a term fixed by law bars his removal from office by the Governor in October, 1980, or at any time before expiration of his four year term of office in December, 1983.

For the reasons which follow we determine that La.R.S. 38:1233 is indeed controlling, that plaintiff Macon in December, 1979, was appointed to a four year term, that it was a term “fixed by ... law,” and that he was thus not subject to removal from office in October, 1980, by the present Governor (La. Const, art. IV, § 5(1) (1974).

A review of the two statutes (La.R.S. 38:281 and La.R.S. 38:1233), their origins and amendments, is essential to the proper resolution of this case.

La.R.S. 38:1233, in the earliest pertinent version of the present statute, upon its amendment by Act 97 of 1928, provided in pertinent part:

Section 2. ... the Governor shall immediately upon the passage of this act, appoint five persons, possessing all the requisites of a qualified elector in said parish [Orleans] to serve as commissioners of said district [Orleans Levee District], who shall hold said office for a term of four years and until their successors are appointed and qualified; and in case of vacancy by death, resignation or inability to act, such vacancy shall be filled by appointment by the Governor. The other Commissioners shall be ex-Of-ficio the Mayor and one other member of the Commission Council of New Orleans, designated by said Commission Council, forming thus a board of seven members.

La.RS. 38:1233 was thereafter amended and reenacted in 1979. The text of that Act, No. 523 of 1979, is found later in this opinion along with a discussion of its effect.

The origin of La.R.S. 38:281(D), as it read in 1979, was Article XVI, § 1 of the 1921 Louisiana Constitution as that section was amended by vote of the people in 1966 (following Act 545 of 1966). That constitutional provision was made statutory by Act 99 of 1975, which became La.R.S. 38:281(C), now Subsection D. Act 545 of 1966, proposing the amendment to Article XVI, § 1, stated its purpose to be “to provide for the appointment of and with respect to the renumeration for members of board of commissions of levee districts.” The amended Article XVI, § 1, thereafter, provided:

Section 1. A. A levee system, as now organized or as hereafter created, shall be maintained.
B.Notwithstanding any other provision in this Constitution or of any law to the contrary, every vacancy, whether for death, resignation, expiration of term or for any other cause, occurring on any present or future board of commissioners of any levee district now or hereafter created in this state shall be filled in the manner hereinafter provided.
Vacancies occurring for any cause including the expiration of the term, shall be filled by appointment by the Governor from panels submitted as follows; each member of the House of Representatives representing a parish or part of parish lying within a levee district shall submit one name for each vacancy to be filled from the parish which he represents in the Legislature; each member of the Senate shall submit one name for each vacancy to be filled from the parish or parishes within the district which he represents in the Legislature. In making appointments, the Governor shall not appoint any individual to a seat on the board of commissioners to represent a specific parish who was not recommended by one or more of the legislators who represent that specific parish in the Legislature.
The terms of any and all members now serving on levee boards shall expire on January 1, 1967, and new commissioners shall be appointed to fill any and all vacancies created by the expiration of their terms in the manner hereinabove provided. All members of the boards of commissioners of levee districts shall have terms concurrent with that of the Governor appointing them.
C. The provisions of this Section shall apply to all boards of commissioners of all levee boards whether created or provided for by this Constitution or by the Legislature.
D. The provisions of this Section shall be self-operative and shall require no further or other legislation. (Emphasis provided.)

This provision of the 1921 Constitution, as amended in 1966, thus declared that all members of boards of commissioners of levee boards would have terms concurrent with that of the governor appointing them. Subsection C also stated that these provisions would apply to “all boards of commissioners of all levee boards There was no Orleans Parish or other exception in the constitutional provision. The article established the terms of all the members of levee boards throughout the state “(notwithstanding any ... law to the contrary .... ” (Subsection B), and the provisions of this Section were declared to be self-operative requiring no further or other legislation (Subsection D).

A subsequent general statute dealing specifically with a particular subject supersedes and repeals inconsistent and conflicting provisions in an earlier statute. Even more pertinent to this case, constitutional provisions by their superior nature need not specifically “repeal” extant conflicting statutes. As the Second Circuit Court of Appeal expressed in Fullilove v. U.S. Casualty Company of New York, 129 So.2d 816, 825 (La.App. 2d Cir.1961): “The constitution is the supreme law, to which all legislative acts and all ordinances, rules, and regulations of creatures of the legislature must yield.” Furthermore, while repeals by implication are not favored, a constitutional amendment or provision operates to supersede or repeal all statutes that are inconsistent with the full operation of its provisions. See State v. Anderson, 215 La. 856, 41 So.2d 809 (1949). So, too, later constitutional provisions, or amendments, prevail over earlier constitutional provisions in conflict. State ex rel Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949).

Contrary to the conclusion reached by the Court of Appeal, this constitutional amendment did indeed nullify or effectively repeal any and all conflicting statutory provisions then in existence. Those provisions of La.R.S. 38:1233 (as it existed from 1928 until 1966), setting up two ex officio memberships and definite four year terms were clearly in conflict with the constitutional language. The statute’s creation of a seven member Board of Commissioners of the Orleans Levee District, of course, was not. The constitutional article prevailed over those portions of the statute in conflict therewith. There was of necessity a repeal, or nullification, of those contrary provisions of La.R.S.. 38:1233 which could not be reconciled with the language of Constitution Article XVI, § 1 after the 1966 amendment.

In 1966 when Article XVI, § 1 of the 1921 Constitution was amended, January 1, 1967, was fixed as the concluding date for the terms of the Orleans Parish Levee Board members then serving, as well as for the terms of all other levee board members then serving throughout the state of Louisiana. Members of all levee boards were thereafter to be appointed by the governor to terms to run concurrently with that of the governor appointing them. While there may have been some confusion about the Orleans Levee Board composition and terms of office following the 1966 constitutional amendment in the minds of some, there were also those who understood the clear effect of the constitutional change.

Since the 1966 constitutional amendment did not specifically repeal La.R.S. 38:1233, its effect was to supersede and effectively repeal the portions of La.R.S. 38:1233 which were inconsistent with its provisions. See Gorham v. Mathieson Alkali Works, 210 La. 462, 27 So.2d 299 (1946). See also Bank of Leeompte v. Lecompte Cotton Oil Co., 125 La. 844, 51 So. 1010 (1910); State v. Fuller, 14 La.Ann. 667 (1859). One portion of La. R.S. 38:1233 unaffected by the 1966 constitutional provision was its prescribing a board composition of seven members, although the other mandates of La.R.S. 38:1233, relative to the board’s composition (five appointees and two ex officio members), and members’ terms, were in conflict with, and therefore nullified by, the 1966 amendment.

When Article XVI, § 1 of the 1921 Constitution as amended in 1966 was continued as a statute by Article XIV, § 16 of the Constitution of 1974, and placed in statutory form by Act 99 of 1975, and later statutorily amended, the Orleans Levee Board’s size (seven members), its composition (all seven gubernatorial appointees) and terms of office (“concurrent with that of the Governor appointing them,” and later “at the pleasure of the Governor”) were continued.

The Orleans Levee Board thus consisted of seven members (La.R.S. 33:1233), all of them appointed by the Governor serving terms concurrent with that of the Governor appointing them (La. Const, art. XVI, § 1 and La.R.S. 38:281(C) as adopted by Act 99 of 1975). The statutory exception of Orleans Parish, previously existing in subsection A of La.R.S. 38:281 did not pertain to subsection C, a provision which has never contained similar exclusionary language. Although it contained no repealer clause, the amendment to the statute continued the language of the constitutional provision, “(notwithstanding any law to the contrary .. .. ” Thus the excision, by repeal of portions of La.R.S. 38:1233, was perpetuated. Even read in pari materia, the two statutes, La. R.S. 38:281 and La.R.S. 38:1233 could not have been reasonably construed together and given simultaneous effect after 1966 (with respect only to composition and terms, not number of board members). And, of course, as earlier indicated, those portions of La.R.S. 38:1233 in conflict with Article XVI, § 1,1921 Constitution (La.R.S. 38:281’s predecessor) had been nullified from 1966 when the constitutional amendment was adopted.

Act 256 of 1977 amended and changed La.R.S. 38:281’s provision that board members serve terms concurrent with that' of the governor appointing them, to read: “All members of the boards of commissioners of levee districts shall serve at the pleasure of the governor.” The 1977 amendment also contained a clause expressly repealing all laws or parts of laws in conflict. The essential conflict between La.R.S. 38:281 and La.R.S. 38:1233 thus continued. In 1978, Act 314 redesignated the provision containing the pertinent language, Subsection C, as Subsection D of La.R.S. 38:281. The language of this subsection was not altered.

In 1979, both of the conflicting statutes were amended. Act 676, relating to La.R.S. 38:281, amended Subsections A and B of the statute; it did not affect Subsection D (formerly Subsection C), which contains the language at issue in this case. Act 523, relating to La.R.S. 38:1233, provided in full:

AN ACT
To amend and reenact Section 1288 of Title 38 of the Louisiana Revised Statutes of 1950, relative to the appointment and term of commissioners of the Orleans Levee District, vacancies, and ex officio commissioners, and otherwise to provide with respect thereto.
Be it enacted by the Legislature of Louisiana:
Section 1. Section 1233 of Title 38 of the Louisiana Revised Statutes of 1950 is hereby amended and reenacted to read as follows:
§ 1233. Appointment and term of commissioners; vacancies; ex officio commissioners:
The governor shall appoint five persons possessing all the requisites of a qualified elector in the parish, to serve as commissioners of the district, who shall hold the office for a term of four years and until their successors are appointed and qualified. In case of vacancy by death, resignation, or inability to act, the vacancy shall be filled by appointment by the governor. The other commissioners shall be ex officio the mayor or an executive employee of the mayor’s office, and one other member of the City Council of New Orleans, designated by the council, forming a board of seven members.
Section 2. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provisions, items, or applications, and to this end the provisions of this Act are hereby declared severable.
Section 3. All laws or parts of laws in conflict herewith are hereby repealed. (Emphasis provided.)

Since Act 523 of 1979 (amending and reenacting La.R.S. 38:1233), enacted Orleans Levee Board composition and terms different from the preceding statute, La.R.S. 38:281 (with its origin in La. Const, art. XVI, § 1), the legislature in 1979 indeed did change the law pertaining to the Orleans Levee Board.

Of course, since the two statutes are laws in pari materia, they should be reasonably construed together, if possible. La.C.C. art. 17. However, where there is an irreconcilable conflict, one statute must prevail. Upon passage of Act 523 in 1979, La. R.S. 38:1233 declared that there would be a definite term of four years for Orleans Levee Board Commissioners. See State v. Bergeron, 235 La. 879, 106 So.2d 295 (1958) (on rehearing). La.R.S. 38:281 stated no definite term of office; the governor could remove the members of the levee boards throughout the state at his pleasure. These conflicting statutes cannot be construed so as to reconcile the conflict by any reasonable construction. Thus, the latest enactment, La.R.S. 38:1233, controls. Smith v. Trosclair, supra; State v. St. Julian, 221 La. 1018, 61 So.2d 464 (1952). La.R.S. 38:1233, the special statute dealing with the Orleans Levee Board supersedes La.R.S. 38:281, the general statute involving all the levee boards of the state. Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362 (1969); Giammanco v. Pizzolato, 275 So.2d 880 (La.App. 4th Cir. 1973).

We therefore conclude that La.R.S. 38:1233 as amended in 1928, insofar as it created a seven member Orleans Levee Board, was to that extent alone a viable statute between 1966 and 1979. The legislature’s amendment/reenactment of La.R.S. 38:1233 by Act 523 of 1979 reinstituted for the Orleans Levee Board, for the first time following the 1966 constitutional amendment and its statutory codification as La.R.S. 38:281 in 1975, the composition of the Orleans Levee Board as it had existed before 1966 (five gubernatorial appointees and two ex of-ficio members). The 1979 act established once again four year terms for the Orleans Levee Board members, changing the then prevailing “service at the pleasure of the governor” of La.R.S. 38:281.

La.R.S. 38:1233 as amended and reenacted by Act 523 of 1979 (four year term and until successors are appointed and qualified), with a general repealer provision, impliedly repealed La.R.S. 38:281’s provision for “serving at the pleasure of the Governor” insofar as La.R.S. 38:281 prior thereto had applied to the Orleans Levee Board. We thus find that when the former Governor in December, 1979, issued a commission after, and under the authority of Act 523 of 1979 (an act effective in September, 1979), Macon was appointed to serve a term of four years, a term thus fixed by law.

Because Macon was appointed in December, 1979 to a four year term fixed by law (four years and until his successor should be appointed and qualified) he was not subject to removal by the Governor who took office in March of 1980, because of the prohibition in Article IV, § 5(1) of the 1974 Louisiana Constitution (see footnote 1 hereinabove). The trial court judgment granting a preliminary injunction in Macon’s favor was correct.

Decree

For the foregoing reasons the judgment of the Court of Appeal is reversed and the judgment of the trial court reinstated.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.

LEMMON, J., dissents.

BLANCHE and MARCUS, JJ., dissent and assign reasons.

BLANCHE, Justice

(dissenting).

The decision in this case rests upon the reconciliation of two statutes which seem to conflict with one another.

R.S. 38:281(D), in pertinent part provides, as it did in 1979, that “All members of the boards of commissioners of levee districts shall serve at the pleasure of the governor.”

R.S. 38:1233, governing the Orleans Levee District, as amended and re-enacted in 1979 provides:

The Governor shall appoint five persons possessing all the requisites of a qualified elector in the parish, to serve as commissioners of the district, who shall hold the office for a term of four years and until their successors are appointed and qualified. In case of vacancy by death, resignation, or inability to act, the vacancy shall be filled by appointment by the governor. The other commissioners shall be ex officio the mayor or an executive employee of the mayor’s office, and one other member of the City Council of New Orleans, designated by the council, forming a board of seven members, (emphasis added.)

According to the official comments to the Louisiana Revised Statutes, the 1979 amendment added the words “or an executive employee of the mayor’s office”; the amendment did not make any other change. Moreover, the record indicates that the Senator who introduced this amendment in the legislature testified that the only reason the legislature amended the statute was in order to allow the mayor of New Orleans to appoint a delegate to attend the levee board meetings. Keeping this legislative intent in mind, it is important to review the history of the two statutes in question.

Section 281 began as a 1966 Amendment to the Louisiana Constitution of 1921. That amendment provided, in pertinent part, that all levee board members were appointed for terms “concurrent with that of the governor.” At that time, § 1233 provided that Orleans levee board members would serve for four year terms. As the majority explains “The Constitutional article prevailed over those portions of the statute in conflict therewith.” There is a difference, however, between “prevailing” over something and “excising” it. The majority seems convinced that the provisions of § 1233 which conflicted with the constitutional provision were repealed. This simply did not occur; the conflicting language remained in the statute and remains today. In a question as to which provision would control, a court in 1967 could not have read the language out of § 1233; it would simply have concluded that the constitutional language controlled.

In 1975, this constitutional provision was enacted as R.S. 38:281, pursuant to the adoption of the 1974 Constitution. Although the statute contained no repealer clause, it tracked the pertinent language of the constitutional article. I agree with the majority that the construction of the constitutional provision remained the same when it was thus implemented as a statute. In 1977, § 281 was amended to change the term of levee board officers from concurrent with the governor to “at the governor’s pleasure.” Nothing else was changed, and it continued to prevail over the contradictory language of § 1233.

In 1979, both of these statutes were amended. The amendments to § 281 were of subsections which are not at issue. The amendment to § 1233 merely added the words allowing the mayor to appoint a delegate in his stead. Act 523 of 1979, which amended and re-enacted § 1233, contained the usual repealer clause, as quoted in the majority opinion. According to the majority, the legislature enacted a statute different from § 281 and, therefore, changed the law pertaining to the Orleans Levee Board. It is this new and “different” statute which they rely upon in reaching the conclusion that Macon was appointed for a legislatively fixed four-year term. The language of Act 523 makes it clear, however, that § 1233 was re-enacted. The language of the statute is identical to that of its predecessor except for the addition provision discussed above. “Law is a solemn expression of legislative will.” La.C.C. art. 1. Since that is true, it is incumbent upon this court to give full consideration to the legislative intent in writing the law:

The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it. La.C.C. art. 18.

In this case, uncontradicted testimony indicates that the legislature never even considered creating an Orleans levee board different in any sense from what had previously existed, except that the mayor would not have the authority to send a representative in his place. Had the Legislature intended to repeal § 281 as it applied to the Orleans board, it would have expressly done so.

The job of the courts is to give effect to the laws. A law is not to be declared impliedly repealed unless “irreconcilable” with “new” law. La.C.C. art. 23. This being true, I would give effect to both statutes by interpreting them in pari mate-ria: the terms of office of the Orleans levee board are for four years (§ 38:1233), subject to the pleasure of the governor (§ 38:281). I would affirm the judgment of the Fourth Circuit Court of Appeal.

MARCUS, Justice

(dissenting).

I do not consider Act 523 of 1979 impliedly repealed La.R.S. 38:281(D) because the two statutes are not in conflict. A law can impliedly repeal another only when the new law contains provisions which are irreconcilable with those of the former law. La.Civ. Code art. 23. These two statutes are not irreconcilable, but can be read together to provide that the board members will have terms of four years, but shall still serve at the pleasure of the governor. Under La. R.S. 38:281(D), which gives the governor the authority to remove members at will, the board members’ terms were indefinite and they would serve until removed from office. Act 523 merely provides that the terms do not last indefinitely, but expire in four years. The board members are still subject to removal at any point during that four-year period. This construction does not violate La. Const, art. 4, § 5(1) because there is no “term fixed by law” when the law allows the governor to remove the board members at will. Accordingly, I respectfully dissent.

      . Article IV § 5(1) of the 1974 Constitution provides:
      Removal Power. The governor may remove from office a person he appoints, except a person appointed for a term fixed by this constitution or by law.

      . There were prior versions of Act 97 of 1928. The Section originated in Act 93 of 1890 which set up a nine member board: seven were appointed by the governor; four were to serve three year terms; three were to serve six year terms and until their successors were appointed and qualified. The mayor and a commissioner of public works of New Orleans were ex officio members. By Act 137 of 1920, the governor was given authority to appoint seven persons “to serve during the term of the Governor as Commissioners of said District.” They were subject to removal by the governor for cause which had to be set forth in writing. Act 234 of 1924 again stated that seven persons would be appointed; four would serve for three years and three would serve for six years and until their successors were appointed and qualified. After declaring in 1920 that the appointees would serve terms concurrent with that of the governor, in 1924 the legislature returned to the language providing a definite term of office. The 1928 amendment retained the language setting up a definite term of office although that term was fixed for all the appointed members at four years.

      . A law is impliedly repealed only “when the new law contains provisions contrary to, or irreconcilable with those of the former law.” La.C.C. art. 23. A special law can be repealed or amended by a subsequent general law only when the two laws cannot stand together. See
        Wenk v. Anisman, 211 La. 641, 30 So.2d 567 (1947); McManemin v. Bossier Parish Police Jury, 228 So.2d 36 (La.App. 2d Cir.1969), cert. denied 255 La. 240, 230 So.2d 91.
      Repeal by implication occurs when an act not purporting to repeal any prior act is wholly or partially inconsistent with a prior statute or covers the subject of a prior act or section and is a substitute act. On the basis that the latest declaration of the legislature prevails, the inconsistent provisions of the prior statute are treated as repealed, (footnotes omitted.) 1A Sutherland, Statutory Construction § 22.22 (3rd ed. 1972).

      . We find no basis for the Court of Appeal statement that Article XVI, § 1, as amended by Act 545 of 1966, applied only to appointed members of the board and did not affect ex officio memberships.

      . For instance, Governor McKeithen chose to appoint John D. Lambert, New Orleans City Councilman to the Orleans Levee Board in 1973. He was an office holder who by designation of the New Orleans City Council might also have qualified as an ex officio member. Furthermore, the attorney general issued two opinions, No. 80-19 (January 10, 1980) and No. 80-1050 (August 20, 1980) expressing his view that even after the 1966 constitutional amendment to La. Const., 1921, art. XVI, § 1, the Board was to be composed of the five gubernatorial appointees and two ex officio members, as set out in La.R.S. 38:1233.

      .For example, in 1971 correspondence, Mr. Dan McGovern, general counsel for the Orleans Parish Levee Board, stated to the Secretary of State that the listing of two ex officio members was incorrect. McGovern stated that Act 545 of 1966 adopted by the public as a constitutional amendment on November 8, 1966, changed the existing law. According to McGovern’s letter, ail members of the Orleans Levee Board after 1966 had to be appointed by the governor pursuant to Constitution Article XVI, § 1; the ex officio memberships were eliminated; all terms would expire with that of the governor.

      . In Gorham v. Mathieson Alkali Works, 210 La. 462, 27 So.2d 299, 304 (1946), this Court stated:
      The general rule is that when later acts do not specifically repeal earlier statutes on the same subject matter, they have the effect of superseding such previous laws only insofar as the provisions of the earlier acts are in conflict with the later expression of the legislative will.

      . La.R.S. 38:281(C), as amended by Act 99 of 1975, tracked the pertinent language of Article XVI, § 1, La. Const. 1921 as amended in 1966:
      C. Notwithstanding any law to the contrary, every vacancy now, or hereafter created, whether by reason of death, resignation, expiration of term, or any other cause, occurring on any levee district now shall be filled by the governor from panels of names submitted as follows: each member of the House of Representatives representing a parish or part of a parish lying within a levee district shall submit one name for each vacancy to be filled from the parish which he represents in the legislature, and each member of the Senate shall submit one name for each vacancy to be filled from the parish or parishes within the district which he represents in the legislature. In making appointments the governor shall not appoint any person to the board of commissioners to represent a specific parish who was not recommended by one or more of the legislators who represent that specific parish in the legislature.

        Adi members of the boards of commissioners of levee districts shall serve terms concurrent with that of the governor appointing them.

        The provisions of this Subsection apply to ail •boards of commissioners of all levee boards. (Emphasis provided.)

      . La.R.S. 38:281 (A) containing the Orleans Parish exception had existed as a statute from the time of its enactment in Act 66 of 1942.

      . The language of La.R.S. 38:281(C) was almost exactly the same as that of Article XVI, § 1 of the 1921 Constitution as amended in 1966.

      . Defendant argues that the legislative intent was not so sweeping, and he directs our attention to an affidavit of one of the Senators. The understanding of one member of the Legislature is not determinative of legislative intent. Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362 (1969). See also Ethyl Corp. v. Collector of Revenue, 351 So.2d 1290 (La.App. 1st Cir.1977), writ denied 353 So.2d 1035 (1978). Furthermore the Senator’s affidavit was not admitted into evidence.

      . In State v. Bergeron, 235 La. 879, 106 So.2d 295 (1958) (on rehearing), this Court was confronted with a statute, involving the Lake Borgne Basin Levee District Commissioners, which originally had the same language as La. R.S. 38:1233. The members would serve “for a term of four years, and until their successors are appointed and qualified.” This Court stated that this language set a fixed term of four years.

      . Although repeals by implication are not favored, Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576 (La.1975); Liter v. City of Baton Rouge, 258 La. 175, 245 So.2d 398 (1971), the Louisiana jurisprudence states that when there is irreconcilable conflict between two statutes a repeal by implication is effected. Legros v. Conner, 212 So.2d 177 (La.App. 3d Cir.1968). “When a subsequent enactment covering a field of operation coterminous with a prior statute cannot by any reasonable construction be given effect while the prior law remains in operative existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails, and the prior law yields to the extent of the conflict.” 1A Sutherland, § 23.09, supra.

      Jurisprudentially a law or statute is impliedly repealed only when its provisions are contrary to, or irreconcilable with the later enactment. Smith v. Trosclair, 321 So.2d 514 (La.1975). See also State v. Jones, 220 La. 381, 56 So.2d 724 (1952).

      . Likewise where a later statute adapted for a particular locality conflicts with a general law of state-wide application, the special or local law will supersede the general enactment. Where, however, the later special or local statute is not irreconcilable with the general statute to the degree that both statutes cannot have a coincident operation, the general statute will not be repealed, but the special or local statute will exist as an exception to its terms, (footnotes omitted.) 1A Sutherland, § 23.16 supra.

      .The fact that we find this levee board appointment was provided for by statute answers defendant’s alternative argument as presented in the lower courts. Defendant contended that if Macon had been validly appointed, his term ended at the end of the legislative session of 1979-1980 since plaintiffs appointment was not confirmed by the Senate. Article IV, § 5(H)(1) of the 1974 Constitution provides:

        The governor shall appoint, subject to confirmation by the Senate, the head of each department in the executive branch whose election or appointment is not provided by this constitution and the members of each board and commission in the executive branch whose election or appointment is not provided by this constitution or by law. (Emphasis provided.)
      Since Macon’s appointment was provided for by law, i.e. La.R.S. 38:1233, the appointment is valid without Senate confirmation. Incidentally, defendant Costa’s appointment was not confirmed by the Senate, either.

      . We distinguish Troxler v. Mongrue, 175 So.2d 309 (La.App. 4th Cir.), writ refused 178 So.2d 654, 248 La. 361 (1965), relied upon by defendant-respondent in brief. In Troxler, there was a conflict between La.R.S. 42:4, a general statute dealing with the governor’s power to remove at his pleasure all public officers appointed by him (with exceptions not pertinent to the office holder in the Troxler case), and the statute, La.R.S. 33:3813, which set the terms for waterworks district commissioners at five years. The Fourth Circuit Court of Appeal held that while the legislature simply retained the five year term language in La.R.S. 33:3811 in two amendments after the effective date of La. R.S. 42:4, the lawmakers were presumed to have intended for those five year terms to be nonetheless subject to the governor’s prerogative to remove the appointees at his pleasure as prescribed in La.R.S. 42:4. Troxler is not disposi-tive or persuasive in the instant case. Here La. R.S. 38:281 deals with member terms and appointments of the Orleans Levee Board, among all of the levee boards of the state, and the later statute La.R.S. 38:1233, deals with the Orleans Levee Board alone; the later statute with which the earlier statute simply cannot be given simultaneous effect, applies.