author: CARTER, Judge:

text:
    STATE of Louisiana v. Willie FRANKLIN.
    No. 84 KA 0646.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Ossie Brown, Dist. Atty. by Luke Lav-ergne, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Ken Riche, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge:

This is an appeal from a conviction of third offense driving while intoxicated.

FACTS

On November 29,1982, between 2:00 and 2:30 p.m., defendant, Willie Franklin, was observed driving his moving van across a corner lot in a residential neighborhood. The police were summoned by the occupant of the house, who reported that she had seen defendant drive across her property, knocking down garbage cans and several utility and cable lines.

When the police officer arrived, Franklin was still sitting in the van. As the officer assisted Franklin from the truck, Officer McClain could smell a strong odor of alcohol on Franklin’s breath and person. Franklin appeared drowsy and had trouble maintaining his balance. .Officer McClain then advised Franklin of his Miranda rights and placed him under arrest for intoxication. A search conducted incident to his arrest revealed a partially filled bottle of gin. Mrs. Victor identified Franklin as the person who had driven across her yard in a green moving van.

Officer McClain then took Franklin to police headquarters for a breath test and field sobriety analysis. Upon getting the requisite rights forms signed, Franklin was tested by Officer Stephen Jackson, who determined that Franklin had a blood-alcohol content of .20.

Defendant was charged by bill of information with third offense driving while intoxicated, a violation of LSA-R.S. 14:98. A jury convicted defendant as charged, and he was subsequently sentenced to serve five years at hard labor. Defendant appeals his conviction, alleging six assignments of error. Assignment of Error No. 1 was expressly abandoned, and since we find merit in his third, fourth, and fifth assignments of error, we will not consider the other assignments of error.

ASSIGNMENT OF ERROR NO. 3

Defendant argues that the trial court erred in admitting into evidence the results of the intoxilyzer test because the state failed to establish that the officer administering the test was properly certified. Defendant argues that the police officer’s certification in effect at the time the intoxilyzer test was administered to the defendant (December 1982) must be placed into evidence in order to satisfy the constitutional requirements set forth in State v. Jones, 316 So.2d 100 (La.1975). Defendant contends that the state’s failure to introduce the card, which certifies that the administering officer was legally qualified to perform the test, constitutes reversible error.

The jurisprudence clearly establishes that the state must prove the qualifications of the officer who administers a chemical test to determine intoxication, and this element of the case is of constitutional proportions. State v. Jones, supra; State v. McGuffey, 316 So.2d 107 (La.1975); City of Monroe v. Robinson, 316 So.2d 119 (La.1975) on rehearing. See also State v. Gregory, 403 So.2d 1225 (La.1981); State v. Morrison, 392 So.2d 1037 (La.1980).

In State v. Jones, supra, the officer testified that he was certified to administer the tests. However, the court found that the officer’s testimony was not clear and unequivocal. The court held that the defendant was entitled to enforcement of the “best evidence” rule and that the testimony given was not the best evidence of the officer’s certification. In State v. McGuffey, supra, the defendant agreed that the certification card need not be introduced as long as the contents were provided. The card in effect when the operator tested the defendant, however, was never located. Accordingly, the court reversed the defendant’s conviction because the best evidence of certification, i.e. the card, was not produced.

However, in both Jones and McGuffey, the Supreme Court indicated that evidence other than the certification card might be sufficient to establish that the officer is qualified to administer the test, and the production of the card may not be a legal necessity. The actual production of the certification card may not be required where the testimony establishes that the card did not exist at the time of trial, and the state may establish the qualifications of the testing officer through alternative methods.

At the hearing on the predicate, Stephen Jackson, the police officer who administered the intoxilyzer test to the defendant, testified that although he was trained and certified to administer the test in August, 1982, he had destroyed the old certification card when that certification expired and his new card was issued in August, 1983.

In attempting to establish that Officer Jackson was qualified to administer the test in December, 1982, the state relied on the following evidence: Jackson’s own testimony that he was certified at that time; the test for certification, dated August 6, 1982, administered to Jackson; and a letter from Herman Legier, instructor with the Department of Public Safety, which acknowledged that Officer Jackson was certified on the intoxilyzer from August 6,1982, through August 6, 1984.

The testimony of Officer Jackson that he was certified at the time of defendant’s arrest does not establish that he was qualified to do so. See City of Monroe v. Robinson, supra.

The primary evidence introduced by the state to establish the fact that Officer Jackson was certified at the time at issue was the letter from Herman Legier, the officer’s instructor, which acknowledged that Jackson was certified at that time.

The letter of acknowledgement by Legier is clearly an out-of-court statement offered as proof of its contents. Unless authorized by a recognized exception to the hearsay rule, the letter is inadmissible as hearsay. . When defendant objected to the entry of the letter as hearsay, the state argued it was admissible as a public document of a state agency. The trial court allowed the introduction of Legier’s letter, although no foundation had been laid for the admission of the record as such. This was clearly impermissible. During the trial, the state attempted to introduce evidence of the qualifications of Legier, at which time defendant objected, because Legier was not available for cross-examination. After discussing the issue with the trial court, the state withdrew the offer of this evidence.

The state must show that the recorded facts are within the personal knowledge of the certifying official entrusted with the legal duty to make (and retain) such record, based upon first-hand knowledge of the facts so recorded. State v. Nicholas, 359 So.2d 965 (La.1978). The evidence must be admissible for some relevant and proper purpose, and the trial court must scrutinize such offerings so as to limit their introduction accordingly.

In the case sub judice, the state presented no foundation whatsoever for the admission of the Legier letter, but merely made the blanket assertion that it was a public document. This letter constituted inadmissible hearsay and cannot be considered to have established the qualifications of the officer.

Although Legier’s testimony might have been acceptable in establishing Jackson’s qualifications, we cannot say that proof of those qualifications has been established by the evidence presented herein to the degree of certainty required. The Supreme Court holding in State v. Jones, supra and State v. McGuffey, supra mandate the finding that the trial court erred in admitting the results of the intoxilyzer test into evidence without a sufficient foundation to establish the accuracy of those results, and this error constitutes reversible error. Cf. State v. Gregory, supra and State v. Morrison, supra.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant argues that the trial court erred in admitting into evidence on the trial on the merits the bill of information by which the defendant was charged in the instant case, the bills of information by which the defendant was charged and convicted for the two prior DWIs alleged in that bill, and the minute entries of those two prior convictions. Defendant contends that this evidence contains improper other crimes evidence that should have been considered by the court only after the defendant was convicted and should not have been considered by the jury.

The bill of information herein charges the defendant with third offense DWI committed on November 29, 1982. This information also alleges two prior convictions of DWI on April 29, 1981 (for an offense occurring on October 4, 1979), and March 10, 1982 (for an offense occurring on May 5, 1981). Defendant’s contentions that it was error to charge the prior convictions in the information, read the information to the jury, and prove these prior convictions to the jury are without merit. In State v. Neal, 347 So.2d 1139, 1141 (La.1977), appears the following:

Where an accused is charged as second, third, or fourth DWI offender, the information or indictment must allege the prior convictions. State v. Montgomery, 250 La. 326, 195 So.2d 285 (1967). Further, where there is a jury trial, this indictment charging the multiple offenses should be read to the jury. State v. Johnson, 250 La. 473, 196 So.2d 797 (1967). The prior offense or offenses must be proved as part of the state’s case, otherwise the conviction will be set aside. City of Monroe v. French, La., 345 So.2d 23 (1977).
Thus, the earlier conviction(s) must be alleged and proved as part of the state’s case against an alleged second (or third or fourth) offender before a conviction as a multiple offender may be secured, so as to permit the imposition of the enhanced penalties for later offenses. See also State v. Bouzigard, 286 So.2d 633 (La.1973) (possession of marijuana, second offense).

See also La.C.Cr.P. art. 483; State v. Cannon, 409 So.2d 568 (La.1982); State v. Krause, 405 So.2d 832 (La.1981); State v. Harris, 444 So.2d 257 (La.App. 1st Cir. 1983), writ denied, 445 So.2d 1234 (La.1984); State v. Richard, 442 So.2d 711 (La.App. 1st Cir.1983).

The bill of information which resulted in the April 1981 conviction was filed in evidence. It charged the defendant with second offense DWI and alleged a prior DWI conviction on October 25, 1977, for an offense committed on May 25, 1975. The bill of information which resulted in the March 1982 conviction was also filed in evidence. It charged the defendant with fourth offense DWI and alleged prior convictions on January 23, 1978, for an offense occurring on December 14, 1976, October 26, 1977, and for an offense occurring on June 25, 1976, and_, 19_, for an offense occurring on April 6, 1979. The minute entry for the March 1982 conviction was filed in evidence. It shows the defendant was charged with fourth offense DWI, the “Court granted the motion to quash as to Counts I, II and III herein”, and the defendant was arraigned on and pled guilty to first offense DWI.

Thus, although the information herein only charged the defendant with being convicted of DWI in March of 1982 and April of 1981, the proof introduced by the State, over the defendant’s objection, showed convictions for DWI in January 1978, October 1977 and_, 19_. This is clearly impermissible other crimes evidence. Cf. State v. .Humphrey, 412 So.2d 507 (La.1982) (on rehearing).

These assignments of error have merit. On the retrial, the State may only use the documentary evidence showing the prior convictions charged in the information, if the reference to extraneous other crimes is masked out.

For the foregoing reasons, defendant’s conviction is reversed, and his sentence is vacated. This matter is remanded to the trial court for a new trial iii accordance with the opinions expressed herein.

CONVICTION REVERSED; SENTENCE VACATED; REMANDED.

      . Defendant expressly abandoned his second argument under this assignment of error, in which he argued the results were inadmissible because defendant was incapable of knowingly and voluntarily waiving his rights relating to the test, and the form used to advise him of his rights did not adequately do so.

      . The state also introduced a certification card issued to Jackson certifying him to administer the intoxilyzer test from October 11, 1983, until October 11, 1985; a recertification form and test administered in 1980, which indicates that Jackson was recertified to administer the photo-elec-trie intoxilyzer (PEI); and copies of the certifications of Bailey Hughes and George Dunn. These items, however, do not establish that Stephen Jackson was certified to administer the intoxilyzer test in December, 1982.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Dixon W. CAMPBELL.
    No. 84 KA 0650.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Ossie Brown, Dist. Atty. by Donald Win-gerter, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Gail Ray, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge:

This is an appeal from a conviction of attempted forcible rape.

FACTS

During the late evening hours of September 15, 1982, the victim arrived in Baton Rouge from Richmond, Virginia on a business trip for her employer. She checked into the Bellemont Hotel and had a drink in her room. She then went over to the coffee shop to get something to eat. Upon finding it closed, the victim went to the piano bar.

From this point on, the testimony as to the circumstances surrounding the sexual intercourse is conflicting. The victim’s version is as follows: While at the piano bar, the defendant approached her and asked her to dance. They danced and had a few drinks together. When she decided to leave the piano bar, the defendant asked and was permitted to escort her to her room. Upon arriving at the room, the victim removed the room key from her pocketbook, whereupon the defendant took it out of her hand and opened the door. The defendant then entered the room and turned on the light and the television set. The victim then asked the defendant to leave, telling him that she had a meeting in the morning. She continued to ask the defendant to leave; however, he refused. Suddenly the defendant threw the victim on the bed, put his hand around her throat, and started choking her. He also told her if she made any noise, he would kill her. The victim began screaming, but the defendant put his hand over her mouth. The defendant pinned her down, took her pants off, ripped her blouse and underwear, and engaged in vaginal intercourse with her. When the defendant began to perform anal intercourse with her, the victim was finally able to push him away. When faced with this resistance, defendant started beating the victim with his fists around her face and head. In the process of leaving the scene of the attack, defendant threatened the victim telling her not to report the incident or he would kill her. He said he had a gun and showed her what appeared to be a sheriffs deputy card. At this time, he ripped the telephone wire out of the wall and left. The victim was unable to rouse the occupants of the adjacent rooms, so she went to the hotel reception desk and reported the attack to security. The police then arrived, and she was taken to Doctors Memorial Hospital for examination.

The defendant gave a totally different version of the events which led up to the sexual encounter. Defendant testified that at approximately 9:30 p.m. on the night in question, he left the front bar at the Bel-lemont Hotel and proceeded to the piano bar. Upon entering the piano bar, he got a drink and sat down. After he was there approximately fifteen or twenty minutes, the victim approached the defendant and asked if she could join him. The two then, had a few drinks and danced several dances together. The couple danced closely, which aroused defendant. Sometime between 11:00 p.m. and midnight, the victim asked defendant to walk her to her room. After he opened the door and handed the victim the keys, she began kissing him. The couple then engaged in intercourse. Afterwards, defendant, dressed and told the victim good night. The defendant denied hitting the victim or forcing the sexual intercourse in any matter. He further denied attempting anal intercourse or pulling the phone wire out of the wall, although he remembered the phone falling to the floor.

Several days after the incident, the victim identified the defendant from a photographic line-up. With this information, Detective Charles Mondrick, an investigator with the Sex Crimes Unit of the Baton Rouge Police Department, located defendant’s place of employment, Allied Builder’s Supply (Allied) in Baker, Louisiana. Detective Mondrick proceeded to this place of business to talk with the proprietors, John and George Kennedy, to gather information on the defendant. Upon being advised of the purpose of Mondrick’s visit, John Kennedy, an attorney, was hesitant to supply the information because not only was Campbell his employee, but he was a friend and possibly a client. Kennedy said he would allow the police officer to question defendant on company time, but that he would advise the defendant not to make a statement.

Since Detective Mondrick was outside the corporate limits of the City of Baton Rouge,' he called the Baker Police Department for assistance. Sergeant Charles Smith of the Baker Police Department arrived and the two were standing outside Allied when they detained defendant as he exited the building. Defendant was advised that he was under investigation for rape, and the officers advised defendant of his Miranda rights. Defendant then volunteered that he had been at the Bellemont Hotel that night. Detective Mondrick interrupted him and again advised him that he had the right to have an attorney present and that he did not have to make a statement. Defendant then continued that while at the Bellemont that night, he had met a female. At this point, Detective Mondrick stopped defendant and asked him to accompany him to the office in Baton Rouge, which defendant agreed to do. When Detective Mondrick went inside the building to advise Kennedy of the situation, the defendant told Sergeant Smith that he did not understand what was happening to him. Defendant admitted having consensual sexual intercourse with the victim, but was afraid she was trying to make trouble for him.

Defendant, Dixon W. Campbell, was charged by indictment with forcible rape, in violation of LSA-R.S. 14:42.1. A jury convicted defendant of attempted forcible rape, and he was sentenced to serve ten years at hard labor, two of which are to be served without benefit of parole, probation, or suspension of sentence. Defendant appeals, alleging the following four assignments of error:

1.The trial court erred in admitting Mr. Jerry Miller as an expert in the field of serology;
2. The trial court failed to suppress a statement made by defendant;
3. The evidence was insufficient to support the conviction; and,
4. The trial court imposed an excessive sentence.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, defendant contends the trial judge erred when he admitted Jerry Miller as an expert in the field of serology. We first note that since both the defendant and the victim testified that sexual intercourse occurred, the testimony of the serologist was of little or no evidentiary value in the case sub judice.

Furthermore, competency of an expert witness normally is a question of fact to be resolved by the trial judge, and his ruling thereon will not be overturned on appeal absent an abuse of discretion. State v. Knighton, 436 So.2d 1141 (La.1983); State v. Coleman, 406 So.2d 563 (La.1981). The expert in the instant case testified that he had six years experience as a forensic scientist in the area of serology, while employed at the Louisiana State Police Crime Laboratory. Mr. Miller had completed a two-week forensic course at Southeastern Missouri State University and a hair and fiber analysis course at the FBI academy. He had a BS degree in Zoology from Southeastern Louisiana University and worked at Assumption General Hospital as a láb technician for approximately six months. Mr. Miller belongs to the Louisiana Association of Forensic Scientists and attends seminars once or twice a year, and he lectures at LSU and the State Police Basic Academy. He has also been qualified as an expert serologist several times before in East Baton Rouge Parish.

Considering Mr. Miller’s background, his education and experience, we cannot say that the trial judge abused his wide discretion in accepting Mr. Miller as an expert in the field of serology.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, the defendant contends the trial judge should have suppressed his statement to police that he was at the Bellemont Motor Hotel on the night in question and that he had engaged in consensual sexual intercourse with the victim. Defendant reasons that because his right to counsel was violated, his incul-patory statements should have been suppressed.

A. WAIVER OF RIGHTS

The statements of an accused, whether exculpatory or inculpatory, when made during a custodial interrogation should be suppressed unless the accused is first advised of, and subsequently waives his right to remain silent and his right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). La. Const. of 1974, art. I, § 13. When an accused asserts his right to counsel, the police must scrupulously honor the invocation of the right and interrogation must cease. State v. Harper, 430 So.2d 627 (La.1983); State v. Thucos, 390 So.2d 1281 (La.1980); State v. Manning, 380 So.2d 46 (La.1980).

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, decided on May 18, 1981, the Supreme Court' held that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. The Court further held that an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. State v. Arceneaux, 425 So.2d 740 (La.1983); State v. Shea, 421 So.2d 200 (La.1982) (on rehearing); State v. McCarty, 421 So.2d 213 (La.1982).

Detective Mondrick and Sergeant Smith testified at trial that the defendant was advised of his constitutional rights and that he appeared to understand his rights. Defendant also testified that he was given his rights and that he understood them.

Therefore, as defendant was clearly advised of his Miranda rights, the question then becomes whether Campbell ever invoked his right to remain silent and his right to counsel and then subsequently waived them.

Defendant testified that after being read his rights, he told Detective Mondrick that he was present at the Bellemont on the night the alleged rape occurred, but that he did not wish to say anything else. Defendant testified that Sergeant Smith did not question him, but that Smith merely responded to his remarks that someone was trying to railroad him. Defendant testified that he spoke freely with Sergeant Smith because he had known him for several years and he was trying to ease his mind. Defendant did not think there was any problem with his talking to the police officers because he assumed John Kennedy had given the officers permission to speak with him, but admitted that he had not spoken to John or George Kennedy prior to talking with the officers.

John Kennedy testified that he directed the police officers not to talk to the defendant unless he was present. He acknowledged that Campbell had not yet consulted him about representation, but that he anticipated representing Campbell. This testimony was contradicted by George Kennedy, who testified that he did not recall John telling Detective Mondrick not to talk to Campbell out of John’s presence and that John made no predictions as to how he would advise Campbell.

Detective Mondrick testified that John Kennedy did not tell him not to question Campbell, nor did Kennedy say he was Campbell’s attorney.

In reviewing the record, the defendant clearly did not invoke his right to remain silent or his right to counsel. Although advised several times during the course of the conversation with police officers that he did not have to make a statement and that he had the right to have an attorney present if he made a statement, the defendant spontaneously made inculpa-tory statements to the effect that he had been at the Bellemont on the night in question and that he had engaged in consensual sexual intercourse with the victim. Under the facts of this case, we must conclude that the defendant did not invoke his Miranda rights prior to making the inculpato-ry statements.

B. ADMISSIBILITY OF THE INCULPA-TORY STATEMENTS

In order for a confession or incul-patory statement to be introduced at trial, the state must affirmatively show that it was voluntarily given and was not obtained through fear, duress, intimidation, menaces, threats, inducements or promises. State v. Eaker, 380 So.2d 19 (La.1980). The trial court’s conclusions as to the credibility of witnesses testifying as to voluntar-iness will not be disturbed unless clearly wrong. LSA-R.S. 15:451; LSA-C.Cr.P. art. 703(B); State v. Walter E. Johnson, 458 So.2d 937 (La.App. 1st Cir.1984).

The burden is upon the state to show affirmatively that the statements were given freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; State v. Mitchell, 437 So.2d 264 (La.1983); State v. Jackson, 414 So.2d 310 (La.1982). The admissibility of an inculpatory statement is a question of fact for the trial judge, and his rulings on credibility of witnesses on the issue are not to be overturned unless clearly wrong. State v. Johnson, supra.

The record reflects ample evidence that the defendant voluntarily made the inculpatory statements. Detective Mon-drick and Sergeant Smith testified at trial that the defendant was not threatened, abused or otherwise intimidated in any way to secure a statement. The defendant also testified that he agreed to go downtown to make a statement and that he voluntarily admitted to being at the Bellemont on the night of the alleged rape.

The trial judge concluded, and we agree, that the defendant’s inculpatory statements were voluntarily made. Therefore, the trial judge properly admitted them into evidence.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

In this assignment, the defendant contends that the state failed to satisfy the necessary burden of proof to convict defendant of attempted forcible rape.

In State v. Mathews, 375 So.2d 1165 (La.1979), the Louisiana Supreme Court determined that the United States Supreme Court ruled in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime had been proven beyond a reasonable doubt. This standard for the appellate review of facts in criminal cases has been made statutory. LSA-C.Cr.P. art. 821; State v. Captville, 448 So.2d 676 (La.1984); State v. Norman, 448 So.2d 246 (La.App. 1st Cir.1984), affirmed in part and reversed in part on other grounds, 452 So.2d 1178 (La.1984); State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983).

In the case sub judice, it is un-controverted that sexual intercourse took place between the defendant and the victim. The only issue is whether the act was done without the victim’s consent. The jury’s verdict indicates that after considering the credibility of the witnesses and weighing the evidence, the jury accepted the testimony of the victim and rejected the testimony of the defendant. Where there is conflicting testimony about factual matters, the resolution of which depends on the determination of the credibility of witnesses, this is a matter of the weight of the evidence, not its sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Norman, supra; State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 (La.1983). A determination of the weight of the evidence is a question of fact, and this court has no appellate jurisdiction to review questions of fact in criminal cases. La. Const. of 1974, art. V, § 10(B); State v. Norman, supra; State v. Norman, supra. This court is constitutionally precluded from acting as a “13th juror” in assessing what weight to give the evidence — that determination rests solely on the discretion of the trier of fact. The trier of fact may accept or reject in whole or in part the testimony of any witness. State v. Norman, supra; State v. McDowell, 427 So.2d 1346 (La.App. 2nd Cir.1983); Holmes v. Southeastern Fidelity Ins. Co., 422 So.2d 1200 (La.App. 1st Cir.1982), writ denied, 429 So.2d 133 (La.1983). The testimony of the victim and the corroborating evidence introduced by the State are sufficient to prove the offense charged. State v. Rives, 407 So.2d 1195 (La.1981); State v. Norman, supra.

Considering the above, it is clear that the evidence was sufficient for the jury to conclude that the state proved every element of the crime of attempted forcible rape. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the sentence imposed upon him- is excessive. Defendant reasons the sentence of imprisonment at hard labor for ten years, two of which are to be served without benefit of parole, probation or suspension of sentence, is inappropriate for a conviction of attempted forcible rape.

The Louisiana Supreme Court has held that Article 1, § 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment and that although a sentence may be within statutory limits it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge is given wide discretion in the imposition of sentences within the statutory limits and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Norman, supra.

LSA-R.S. 14:42.1 provides for a term of imprisonment not less than two nor more than forty years and contains a mandate that at least two years of such sentence be without benefit of probation, parole or suspension of sentence. The penalty provision in the attempt statute provides that the defendant shall be imprisoned in the same manner as for the offense attempted; however, the imprisonment shall not exceed one-half the longest term of imprisonment for the offense attempted. Accordingly, in sentencing the defendant convicted of the crime of forcible rape, the trial judge had the discretion to sentence the defendant to twenty years at hard labor and to require that all or a portion of the sentence for attempted forcible rape be without benefit of parole. See State v. Norman, supra.

Defendant further contends that the trial judge failed to comply with the sentencing guidelines in LSA-C.Cr.P. art. 894.1. While a trial judge is not required to articulate every mitigating and aggravating circumstance at sentencing, he is required to give an adequate review of the guidelines under LSA-C.Cr.P. art. 894.1. State v. Grey, 408 So.2d 1239 (La.1982). When there is compliance with the sentencing criteria, a sentence will not be set aside in the absence of manifest abuse of discretion. State v. Wardlow, 448 So.2d 257 (La.App. 1st Cir.1984).

A careful review of the record satisfies us that the trial judge carefully considered LSA-C.Cr.P. art. 894.1 and substantially complied therewith. He noted that the defendant had a good work record, but he also noted that defendant had prior criminal convictions and previous arrests for sex-related offenses. The trial judge concluded the defendant had a propensity to commit sexual offenses and that he was dangerous to society and that any lesser sentence would deprecate the seriousness of this crime. The ten-year sentence imposed in the instant case is one-half of the maximum which could have been imposed, and this sentence is not excessive.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . We note that appellant set forth in his brief four assignments of error. However, in one portion of the brief, the assignments of error are misnumbered.

      . Defendant failed to file a motion to suppress evidence pursuant to LSA-C.Cr.P. art. 703; however, in fairness to the defendant, the trial judge • permitted the defendant to raise his objection on the predicate at trial.

      . The State presented the following evidence:
      a) the victim’s torn bra, slip, and blouse;
      b) the telephone wire which had been ripped from the wall of the victim’s motel room;
      c) the testimony of Louisiana State Police forensic scientist, Mr. Jerry Miller, that the bedspread from the victim's motel room contained seminal fluid; and,
      d)the testimony of Dr. D.D. Bryant of the Baton Rouge Rape Crisis Center that when he examined the victim the night of the rape, she had a bruised temple and a facial laceration.

      . The type of criminal activity a court may consider in a sentencing proceeding is not limited to prior convictions or by the rules of evidence. State v. Washington, 414 So.2d 313 (La. 1982); State v. Donald Johnson, 459 So.2d 1316 (La.App. 1st Cir. 1984) (under docket # 84 KA 0362); State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983).


author: CARTER, Judge.

text:
    STATE of Louisiana v. Gay GARRETT.
    No. 84 KA 0658.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Ossie Brown, Dist. Atty. by Luke Lav-ergne, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Allen W. Helm, III, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

In this appeal, the trial court’s denial of a motion to suppress is contested.

FACTS

On the evening of January 14,1983, Officer Madeline Watson of the Baton Rouge City Police Department was assigned to a task force deployed to patdown patrons of various bars for weapons and narcotics. Defendant, Gay Garrett, was standing outside Yesterday’s Lounge when officers of the task force arrived to conduct patdowns of the patrons of the lounge. Defendant was taken inside the lounge where she -was searched by an unidentified officer, who took her purse and handed it to Officer Watson. When Officer Watson opened defendant’s purse to examine its contents, she discovered a bag containing what appeared to be marijuana atop the other contents of the purse. Defendant was then placed under arrest and Officer Watson conducted a further search of the contents of the purse. A small coin purse, located within the larger purse, was closely scrutinized, and a foil packet of tablets and two loose tablets were found. Officer Watson did not recognize the tablets as contraband and consulted with a task force sergeant, who identified the tablets as methaqualone (quaaludes). Defendant was thereafter transported to the police station and booked. Scientific analysis later conducted by the Louisiana State Police confirmed the identity of the tablets as the controlled dangerous substance, methaqualone.

Gay Garrett was charged by bill of information with possession of methaqualone, in violation of LSA-R.S. 40:967 C. The defendant filed a motion to suppress evidence, which was denied after a hearing on January 12, 1984. Defendant thereafter pled guilty as charged, reserving her right to appeal the trial court’s denial of the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976).

The court sentenced defendant to be confined in the custody of the Department of Corrections for a period of two years. Execution of the sentence was suspended, and defendant was placed on supervised probation for a period of five years conditioned upon payment of $82.50 to the Clerk of Court’s office, submission to examination and/or evaluation by the Baton Rouge Substance Abuse Clinic, and submission to periodic urinalysis at her own expense.

On appeal, defendant urges only one assignment of error, viz. that the trial court erred in finding that the warrantless search of defendant was lawful under provisions of Baton Rouge City Ordinance 13:95.3.

ARGUMENT

Defendant challenges the validity of the initial search of her purse, which resulted in her arrest. Defendant reasons that because that initial search was unlawful, the evidence later obtained in the search incident to her arrest must be suppressed, viz. the methaqualone.

A search conducted without a warrant is per se unreasonable, in violation of the Fourth and Fourteenth Amendments of the United States Constitution, unless it falls within one of the specifically delineated exceptions to the warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Turner, 392 So.2d 436 (La.1980). One exception to the general ban on searches conducted without warrants issued on probable cause permits a search if the subject voluntarily consents. Whether consent is voluntary is an issue of fact determined in light of the “totality of circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). When entrance onto premises is conditioned upon submission to the search of one’s person, the intrusion can not be upheld on the basis of implied consent absent posting of signs visible to those affected or some other form of communication setting forth such policy. See United States v. Doran, 482 F.2d 929 (9th Cir.1973); Collier v. Miller, 414 F.Supp. 1357 (S.D.Tex.1976). Any evidence obtained as a result of an unconstitutional initial search and unlawful arrest must be excluded at trial because it is considered “fruit of the poisonous tree”. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Landry, 414 So.2d 674 (La.1982). The exclusionary sanction applicable to “fruits” includes physical material actually seized in an illegal search. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980).

In the case sub judice, the state failed to sustain its burden of proving that defendant’s consent was freely and voluntarily given. The sole justification for the initial warrantless search of defendant’s purse was the implied consent provision of Section 13:95.3(b) of the Code of Ordinances for the City of Baton Rouge, Parish of East Baton Rouge, Louisiana, made applicable to the instant case because of defendant’s presence in a place “where alcoholic beverages are sold and/or consumed on the premises.” The testimony of Officer Watson revealed that a sign located inside Yesterday’s Lounge warned that by entering the premises an individual consented, in accordance with Section 13:95.-3(b), to a search of his person for any firearm or other instrumentality customarily used or intended for use as a dangerous weapon. However, reliance on the warning sign posted inside the bar is misplaced because defendant was standing outside Yesterday’s Lounge when first encountered by law enforcement officers. The state offered no evidence that defendant had been inside the lounge before being confronted by police officers or that she was otherwise aware of the posted warning. Defendant was present in the lounge because she was brought there by the police and not because she entered on her own. Therefore, we cannot say that defendant impliedly consented to a search of her person.

Because defendant did not consent to the initial search and because no probable cause existed at the time of the initial search of defendant, we find that the initial search was unlawful and the subsequent arrest was illegal. The quaalude tablets were discovered as a result of a search incident to defendant’s unlawful arrest. But for the initial unlawful search and subsequent illegal arrest, the quaalude tablets would not have been found. The record reveals no intervening events of any significance. Accordingly, the chain of causation proceeding from the unlawful conduct had not become so attenuated or been interrupted by some intervening circumstance to remove the taint imposed upon the evidence by the original illegality. As such, the trial court erred in denying defendant’s motion to suppress the seized quaalude tablets.

For the reasons stated, defendant’s conviction is reversed, the sentence is vacated, and the case is remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Section 13:95.3(b) of the Code of Ordinances, for the City of Baton Rouge, Parish of East Baton Rouge, Louisiana, provides:
      (b) Any sheriff, deputy, sheriff, state police, city police, constables, town marshals, or persons, vested with police power, may search any person found in any place where alcoholic beverages are sold and/or consumed on the premises, and shall confiscate any firearm or other instrumentality customarily used or intended for probable use as a dangerous weapon which such peace officer may find; this search shall be limited to only weapons, unless there is probable cause for a wider search. Any person who enters a place where alcoholic beverages are sold and/or consumed on the premises does, by the mere fact of entering, consent to a search of his person for any firearm or other instrumentality customarily used or intended for probable use as a dangerous weapon while on said premises, by any sheriff, deputy sheriff, state police, constable, town marshal or persons vested with police power without a warrant.


author: COLE, Judge.

text:
    STATE of Louisiana v. Gary L. SPELL.
    No. KA 84 0671.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Peter Garcia, Kevin J. McNary, Coving-ton, for appellee.
    David R. Katner, Lawrence A. Arcell, New Orleans, for appellant.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The sole issue presented is whether or not a probationary condition ordering defendant to pay restitution in the amount of $1,000 a month for five years is excessive.

Defendant, Gary Spell, was charged by bill of information with committing an aggravated battery upon David Gill on July 19, 1980. Following a jury trial, he was found guilty as charged and sentenced on October 10, 1982 to serve six years at hard labor and pay a fine of $2,500. The trial' court suspended the sentence of imprisonment and placed defendant on probation for five years, subject to the conditions that he:

(1) pay the fine within 18 months;
(2) serve one year in the parish jail;
(3) make reasonable reparation and restitution to the victim in an amount to be determined by the court at a later date.

On April 5, 1983, the trial court suspended the remainder of defendant’s jail sentence and ordered his release upon the condition he pay the victim restitution of $1,000 per month throughout his probationary period (a total of $60,000). Defendant appealed his sentence to this court.

On February 28, 1984, we remanded this case with instructions to hold an evidentia-ry hearing allowing both sides to present evidence as to the amount of restitution appropriate under La.Code of Crim.P. art. 895.1 A, particularly the victim’s loss and inconvenience and the defendant’s ability to pay. State v. Spell, 449 So.2d 524 (La.App. 1st Cir.1984). After conducting a hearing, the trial court concluded the amount of restitution originally set was reasonable and re-imposed its original conditions of restitution. Defendant has now appealed, alleging the amount of restitution ordered by the trial court is excessive.

Trial courts are given wide discretion in the imposition of sentences. In the absence of a manifest abuse of discretion, sentences within statutory limits should not be set aside as excessive. Sentences should be adapted to the offender as well as to the offense. A sentence is excessive if it is grossly disproportionate to the severity of the crime or is nothing more than a needless imposition of pain and suffering. State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983).

In the present case, defendant contends the evidence presented was insufficient to support the trial court’s finding that the victim was entitled to $60,000 for his loss and inconvenience. He further contends the trial court improperly considered evidence from the civil proceedings filed by the victim, which the court also presided over, in setting the amount of restitution.

We disagree. The evidence presented at the hearing was sufficient to support the trial court’s award of restitution. It is clear from testimony presented at this hearing that the victim, David Gill, suffered extensive injuries as a result of being shot in the neck by defendant. He was hospitalized for a period of over two weeks. Since the shooting he has experienced a general weakness in his right arm and leg. He walks with a limp and is unable to run. It is now impossible for him to participate in hunting and sporting activities as he did prior to the shooting. Gill testified he was right-handed prior to the shooting and has now significantly lost the use of his right hand. He can not do any type of heavy lifting with his right arm and must even use his left hand to write and eat. His right hand often cramps while he sleeps and hurts in cold weather. Another significant factor is that the bullet, which caused a seven inch scar, is still lodged in the back of Gill’s neck. Further, he stated he has experienced tension headaches since the shooting. Gill’s testimony was supported by the medical records filed into evidence. Additionally, his testimony as to the limited use of his right hand was corroborated by Rodger Beyer, the co-owner of the service station where Gill was employed subsequent to the shooting.

Testimony presented at the hearing also clearly supported the trial court’s finding Gill lost a substantial amount of income due to the shooting. Gill testified he was unable to work due to his injuries for nearly three years after the shooting. Prior to the shooting he worked as a painter earning $5.00 an hour. He was finally able to return to work in April of 1983, initially making $3.35 an hour as a gas station attendant. A few months before the hearing, he obtained a job as a painter earning $4.00 an hour. However, since he is unable to perform many of the usual tasks expected of a painter, his prospects in this field and his opportunities for future advancement appear limited. Considering the above facts and circumstances, we find no error in the trial court’s finding that David Gill suffered loss and inconvenience amounting to $60,000.

Defendant’s argument that the trial court’s decision was improperly based upon evidence presented during the civil proceedings filed by Gill is without merit. The civil proceedings referred to by defendant did not proceed beyond the stage of a pretrial conference, at which time the parties consented to a $225,000 judgment against defendant. Accordingly, no evidence was presented in these civil proceedings. Further, as noted above, sufficient evidence was presented at the hearing in the criminal proceedings to support the trial court’s finding.

An additional argument raised by defendant is that the restitution ordered is excessive because the victim has already been awarded $225,000 in a civil judgment. With regard to this argument, it is significant defendant made no attempt to show he had or will pay any of this civil judgment. In fact, the trial court noted defendant’s previously stated intention not to pay this judgment. In any event, it appears defendant would be entitled to a credit on this civil judgment for whatever amount he pays in restitution. See National Food Stores of La., Inc. v. Chustz, 385 So.2d 374, 376 (La.App. 1st Cir.1980), writ denied, 386 So.2d 356 (La.1980). Under these circumstances, the fact the victim has obtained a civil judgment, which remains unpaid, does not render the amount of restitution excessive.

Defendant also contends the amount of restitution ordered is not reasonably related to his rehabilitation. He argues there is no evidence the payment of restitution has contributed to his rehabilitation. With respect to his argument, it should be noted that Code of Crim.P. art. 895 A(7) specifically lists the payment of restitution as a probationary condition which is reasonably related to a defendant’s rehabilitation. Further, we find the payment of sizeable restitution appropriate in the present case because of the victim’s extensive injuries and the necessity for impressing upon defendant the seriousness of his actions. The purpose of probation is to aid a defendant’s rehabilitation by allowing him to reintegrate into society without confinement. State v. Carey, 392 So.2d 443 (La.1981). We find defendant’s reintegration into society as a responsible, law-abiding citizen is advanced by the requirement that he accept certain financial responsibility for the consequences of his conduct and attempt to compensate for at least a portion of his victim’s losses. Accordingly, we find the restitution ordered to be reasonably related to defendant’s rehabilitation.

Defendant’s final argument is that the amount of restitution ordered was not based on his earning capacity and assets. Following his release from parish jail in April of 1983, defendant went to work offshore as a “blue water” seaman. During the months of July through December of 1983, he worked seven days a week, twelve hours a day, and made $35,000. At the time of the hearing in April of 1984, defendant was working as a “brown water” seaman at a salary of $1,600 a month (approximately $19,000 a year). Defendant testified he thought he might be able to get another blue water job within two to three months. Although he had an opportunity to do so, defendant presented no evidence of his present expenses. Defendant further testified he has no assets.

The parties stipulated that defendant has a seaman’s rating of fireman, oiler, and water tender and the wages for such are approximately $3,000 a month with overtime. It was also stipulated a representative from defendant’s union would have testified, if he had appeared at the hearing, the availability of such work is presently not good.

While the stipulated testimony indicates the theoretical problems which may face defendant in obtaining blue water jobs at his rating, defendant did not show any actual attempts on his part to obtain such work. Defendant failed to show he was acting in good faith in taking a job paying significantly less than he had previously earned. The trial court apparently concluded defendant was “playing games” with the court and took a lower paying job in order to have the amount of restitution reduced. Given the trial court’s superior opportunity to observe defendant’s testimony and demeanor and our own review of the record, we can not say this conclusion was erroneous. In view of these considerations, we find no error in the court’s finding that defendant has an earning capacity of approximately $3,000 a month.

For the above reasons, we affirm the condition of probation ordering defendant to pay $1,000 a month in restitution throughout his probationary period.

AFFIRMED.

      . We note defendant’s sentence was illegally lenient because he was not in fact eligible for probation. Since defendant committed an aggravated battery with a firearm, the trial court was required under R.S. 14:95.2 to impose an additional two year sentence upon defendant which could not be probated. Although the trial court did not comply with this requirement, we are unable to correct this sentence under State v. Jackson, 452 So.2d 682 (La.1984).

      . Defendant’s sentence was affirmed in all other respects.

      . Defendant contends the trial court’s failure to allow him to present Gill’s income tax records for the three years Gill was out of work prevented him from showing loss of wages. It is unclear what difference the income tax records would have made in light of Gill’s testimony as to his lack of wages during this period. In light of Gill’s testimony, it would be reasonable to assume he lost at least $25,000 in past wages and stands to lose a certain amount of future earnings as well. The evidence also showed Gill incurred at least $3,000 in medical expenses.

      . Furthermore, we agree with the trial court the mere fact the parties entered into a $225,000 consent judgment may not in and of itself prove the victim’s loss and inconvenience, but it does tend to support his finding.

      . From the testimony of defendant and his mother, it appears defendant at one time owned a trailer and lot worth approximately $15,000, but sometime after the shooting turned the trailer and lot over to his parents as co-signers on the note. His parents apparently received a substantial amount of equity in the trailer and lot.

      . An analogy may be made to family law cases involving the earning capacity of the husband in determining alimony or child support. See McKenna v. Steen, 422 So.2d 615 (La.App. 3d Cir.1982), writ denied, 429 So.2d 157 (wherein a dentist sold his practice and went to law school "for reasons primarily culminating from his disgust in paying what he considered to be an exorbitant amount of child support.” See also, Burgett v. Burgett, 390 So.2d 1390 (La.App. 4th Cir.1980).

      .We note the trial court may modify the conditions of probation at any time if it feels it necessary. La.Code Crim.P. art. 896. In fact, the trial court itself noted it could modify the amount of restitution if defendant was unable to pay it. Thus, if defendant makes a reasonable effort to pay restitution, but is unable to do so, the trial court may then consider a modification of the amount ordered.


author: LANIER, Judge.

text:
    STATE of Louisiana in the Interest of Shawanda Lynette COX.
    No. KJ 84 0695.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Writ Denied March 15, 1985.

      V. Patrick Bella, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee State of La.
    Michael Mitchell, Baton Rouge, for defendant-appellant Shawanda Lynette Cox.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

On January 16, 1984, Shawanda Lynette Cox, a juvenile, was taken into custody for being a delinquent child in East Baton Rouge Parish, Louisiana. A detention hearing was held in the juvenile court for East Baton Rouge Parish on January 18, 1984, at which time the court appointed defense counsel and ordered Cox to be held in pre-adjudication detention unless she posted a $50,000 bond. On January 27, 1984, the State filed a petition charging Cox with being a delinquent child, a child in need of supervision and a child in need of care by committing aggravated assault and attempted felony theft in violation of La. R.S. 14:37 and 14:27 and 67, respectively. Cox, through her counsel, denied the allegations of the petition. On April 2, 1984, an adjudicatory hearing was held on the charges. Cox was adjudicated a delinquent child on the aggravated assault charge. The court found her not guilty of attempted theft and dismissed that charge. On April 16, 1984, a dispositional hearing was held. The court ordered Cox committed to the custody of the Louisiana Department of Corrections for a period not to exceed six months, with credit for time served commencing April 16, 1984. Counsel for Cox made a motion for a suspensive appeal. The court granted a devolutive appeal which was lodged in this court on June 4, 1984.

FACTS

On January 16, 1984, Chandler Willis was the owner and operator of the Willis-Liggett Drugstore located at 409 Riverside Mall in East Baton Rouge Parish, Louisiana. At approximately 5:00 p.m., Willis was “checking out” the cash register when he heard the distinctive sound of the door of his safe hitting the safe casing in the back office of the store. Willis looked toward the back office and observed a black male and a black female leaving the office and walking toward the front of the store. Willis confronted the pair and attempted to block their passage out of the store. After the male unsuccessfully tried to get by Willis, the female pulled a pistol out of her jacket. Willis stepped back and the male passed by him. As the male was leaving the store, the female moved in front of Willis and he grabbed the pistol and took it away from the female. The female ran out of the store and Willis pursued her. Willis caught the female at the street, brought her back inside the store and held her until the police arrived.

STANDARD FOR APPELLATE REVIEW OF FACTS IN JUVENILE MATTERS

The courts of appeal of Louisiana have appellate jurisdiction of all matters appealed from juvenile courts. La. Const, of 1974, art. V, § 10(A)(2); La.C.J.P. art. 97 et seq. The scope of appellate review by the courts of appeal in juvenile matters extends to both the law and the facts. La. Const, of 1974, art. V, § 10(B).

In civil matters the scope of appellate review by the courts of appeal of Louisiana extends to the law and the facts, just as in juvenile matters. La. Const. of 1974, art. V, § 10(B). The standard for appellate review of facts in civil matters is set forth in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) and Canter v. Koehring Company, 283 So.2d 716 (La.1973). When reviewing the facts in a civil matter, an appellate court may not disturb reasonable evaluations of credibility and reasonable inferences of fact of a district court. However, even though an appellate court determines there is a reasonable factual basis for the findings of the district court, the appellate court has latitude to evaluate the overall weight of the evidence to determine if the factual conclusions of the district court are clearly wrong.

The scope of appellate review of the courts of appeal of Louisiana in criminal cases extends only to questions of law. La. Const. of 1974, art. V, § 10(B). However, in State v. Mathews, 375 So.2d 1165 (La.1979), a majority of the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Under the Jackson standard, all evidence must be considered in the light most favorable to the prosecution and all reasonable findings of the trier of fact involving conflicts in the testimony (credibility), the weight of the evidence and the inferences drawn from the basic facts must be accepted by an appellate court. However, determinations of the credibility of witnesses is a matter of the weight of the evidence and not its sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). A determination of the weight of the evidence is a question of fact. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). Since the weight of the evidence is a question of fact, this court has no appellate jurisdiction to review it in appeals in criminal cases. State v. Williams, 452 So.2d 234 (La.App. 1st Cir.1984), writ not considered, 456 So.2d 161 (La.1984), reconsideration not considered, 458 So.2d 471 (La.1984).

The evidentiary elements considered in making a Jackson review are the same as an Arceneaux review: weight, credibility (an element of weight) and inferences. Under the Jackson standard, these elements must be considered in the light most favorable to the prevailing party, the prosecution. Under the Arceneaux standard, the appellate court is not required to consider the three elements in the light most favorable to the prevailing party but must accept reasonable evaluations of credibility and reasonable inferences and may determine if the overall weight of the evidence is clearly wrong. A review under the Arceneaux standard is broader in scope than a review under the Jackson standard. State in Interest of Cason, 438 So.2d 1130 (La.App. 2nd Cir.1983).

A review of the jurisprudence shows that some appellate courts have reviewed juvenile delinquency adjudications under the Arceneaux standard, some have reviewed them under the Jackson standard and some have reviewed them under both. State in Interest of Racine, 433 So.2d 243 (La.App. 1st Cir.1983), writ denied, 440 So.2d 151 (La.1983). See also State v. Redd, 445 So.2d 126 (La.App. 2nd Cir.1984) and Cason, 438 So.2d at 1131-1132. The Arceneaux review is clearly a review of facts because it involves determinations of reasonable inferences, reasonable credibility findings and overall weight evaluation.

Is a Jackson review one of fact or one of law? At least two legal authorities and the Louisiana Supreme Court in dictum have indicated that a Jackson review of the sufficiency of the evidence is a question of law. Baker, Developments in the Law, 1982-1983: Criminal Law, 44 La.L.Rev. 279 (1983); Joseph, Developments in the Law, 1982-1983: Postconviction Procedure, 44 La.L.Rev. 477 (1983); State v. Cheatwood, 458 So.2d 907 (La.1984); State v. Moran, 400 So.2d 1359, 1363 at fn. 4 (La.1981). If a Jackson review is a question of law, and if we only conducted that review in a juvenile delinquency matter, would we be abdicating our constitutional jurisdiction and duty to review questions of fact in such cases? Or, should we review the sufficiency of the evidence as a question of law under the Jackson standard and the weight of the evidence as a question of fact under the Arceneaux standard? Since the Arceneaux standard is broader in scope than the Jackson standard, would an Ar-ceneaux review necessarily include a Jackson review? Since the evidentiary elements of each standard are the same (weight, credibility and inferences), how can one be a question of law and the other a question of fact?

La. Const, of 1921, art. VII, § 10 established the appellate jurisdiction of the Louisiana Supreme Court, in part, as follows: “In criminal matters, its appellate jurisdiction extends to questions of law only.” To determine jurisdiction under this provision, the Louisiana Supreme Court defined a question of law as “where there is no evidence at all upon some essential element of the crime”. A question of fact was defined as “the sufficiency of the evidence”. State v. Vines, 245 La. 977, 162 So.2d 332 (1964) and the cases cited therein.

La. Const, of 1974, art. V, § 5(C) established the appellate jurisdiction of the Louisiana Supreme Court, in part, as follows: “In criminal matters, its appellate jurisdiction extends only to questions of law.” In explaining this constitutional prohibition against appellate review of facts in criminal cases at the Constitutional Convention of 1973, the chairman of the Judiciary Committee observed that “[i]n criminal matters however the appellate jurisdiction is restricted to questions of law. This is also the present law in our Constitution and is continued without substance.” 6 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, page 721 on August 15, 1973. The Constitutional Convention of 1973 kept a verbatim record of its proceedings, in part, to aid the courts in interpreting constitutional provisions. 5 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, pages 67-73 on January 13, 1973. On numerous occasions, the courts have referred to convention records to determine the meaning of constitutional provisions. State v. Ruple, 426 So.2d 249, 254 (La.App. 1st Cir.1983). To determine jurisdiction under this constitutional provision, the Louisiana Supreme Court defined a question of law as “only where there is no evidence at all to support an essential element of the crime”. The “sufficiency of the evidence” was considered a question of fact over which the court had no jurisdiction. State v. Tennant, 352 So.2d 629 (La.1977) and the cases cited therein; Ruple, 426 So.2d at 255. This jurisprudence has not been expressly overruled. If this jurisprudence is changed, it will effect a substantial amendment of the Louisiana Constitution of 1974 without a vote of the people as required by Article 13 thereof.

Effective July 1, 1982, the Courts of Appeal of Louisiana were invested with appellate jurisdiction in criminal cases tria-ble by a jury (except death penalty cases). La. Const. of 1974, art. V, § 10(A)(3). The jurisdiction of courts of appeal was established, in part, in La. Const, of 1974, art. V, § 10(B) as follows:

Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts. In criminal cases its appellate jurisdiction extends only to questions of law.
(Emphasis added).

The language about criminal appellate jurisdiction being limited to questions of law is almost identical to that used in La. Const, of 1921, art. VII, § 10 and La. Const, of 1974, art. V, § 5(C). It is a well established rule of constitutional construction that where a constitutional provision similar or identical to that contained in a prior constitution is adopted, it is presumed such provision was adopted with the construction previously placed on it by the jurisprudence. State v. Schneller, 199 La. 811, 7 So.2d 66 (1942); Kuhn v. Louisiana Highway Commission, 174 La. 990, 142 So. 149 (1932); State v. Glenn, 153 La. 147, 95 So. 534 (1923); Brasseaux v. Vermilion Parish Police Jury, 361 So.2d 35 (La.App. 3rd Cir.1978), writ denied, 363 So.2d 535 (La.1978); 16 C.J.S., Constitutional Law, § 35. Thus, it would appear that for purposes of determining our constitutional jurisdiction questions of sufficiency of evidence (as determined in a Jackson review) are questions of fact.

If the Jackson sufficiency of evidence review presents a question of law, then juvenile matters (where we have jurisdiction over questions of law and fact) must be evaluated under both the Jackson and the Arceneaux standards by an appellate court to perform its constitutional duty to review the law and the facts. In such a situation (and because an Arceneaux review is broader than a Jackson review), it is theoretically possible that the evidence would be sufficient under Jackson but insufficient under Arceneaux. However, if a Jackson review involves a question of fact, then juvenile matters must be evaluated under the Jackson standard or the Arcen-eaux standard, but not both.

SUFFICIENCY OF PROOF

When the State charges a child with a delinquent act, it has the burden of proving each element of the offense beyond a reasonable doubt. La.CJ.P. art. 73. Cox was adjudicated a delinquent child for committing an aggravated assault in violation of La.R.S. 14:37. An aggravated assault is defined in La.R.S. 14:37 as “an assault committed with a dangerous weapon.” An assault, as charged herein, is defined in La.R.S. 14:36 as “the intentional placing of another in reasonable apprehension of receiving a battery.” A dangerous weapon, as charged herein, is defined in La.R.S. 14:2(3) as an “instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” The elements of the offense, as charged in the petition, are: (1) on January 16, 1984, Sha-wanda Lynette Cox, a juvenile; (2) in East Baton Rouge Parish; (3) with the requisite criminal intent; (4) placed Chandler Willis in reasonable apprehension of receiving a battery; and (5) the reasonable apprehension of receiving a battery was produced by a dangerous weapon.

Mary Ann Cox, the juvenile’s grandmother, testified that her address was 534 South 18th Street in Baton Rouge. She had physical custody of the juvenile because the juvenile’s mother “had her turned over to me because she’s in St. Gabriel”. The juvenile was born on November 3, 1969, and was 14 years of age. The juvenile’s father, John Starks, did not have legal custody of her.

Chandler Willis testified that he was the owner of the Willis-Liggett Drugstore located at 409 Riverside Mall in East Baton Rouge Parish. On January 16, 1984, at approximately 5:00 p.m., he was at the rear of his store checking out his cash register. The only people in that area of the store were himself and his father, who was at the prescription counter. Willis heard the sound of his safe door hitting the safe casing in the back office of the store. He looked toward the office and saw a black male and a black female walking toward the front from the direction of the office. Willis confronted the pair and asked what they were doing. He suspected they had been in the safe and blocked their passage to try to question them. The male tried to push his way past Willis, and the female pulled a gun out of her jacket and pointed it at him. He stepped back and the man walked past him. The girl got in front of him, holding the gun pointed to the front of her (not at him) and he “grabbed the pistol in her hand and wrestled her down, took the gun away from her” and she got up and ran out. Willis ran after her, caught her and. brought her back in the store. The police were then called. On re-entering the store, Willis found the petty cash bag he kept in the safe on the floor where he had the struggle with the female. Prior to the struggle, the cash bag was kept in the safe. Willis opened the bag and everything was intact. The bag had approximately $360 in it. A gun (State-1) was shown to Willis, and he identified it as looking like the one he took from the female. Willis was unable to identify Cox as the female involved in this incident.

Rosalind Sheppard testified that she worked for the Liggett Drugstore. When asked about the incident, she said she observed a girl come in the store looking for cards. This girl also looked at the liquor. The girl was with a man and another girl. The girl went to the back of the store. She later saw Willis talking to “them”. She observed that the girl had a gun, but it was not pointed at anyone when she observed it. Sheppard positively identified Cox several times as the girl with the gun. Sheppard saw Cox over a period of about ten or fifteen minutes that day. Sheppard saw Willis go after Cox and saw Willis bring her back into the store.

Detective Randall Moran of the Armed Robbery Division of the Baton Rouge Police Department testified that he received a complaint about 5:10 or 5:15 p.m. on January 16, 1984. Pursuant to the complaint, he went to Liggett’s Drugstore on Riverside in East Baton Rouge Parish. When he arrived, Cox was being detained by Willis. He arrested her and she identified herself as Shawanda Cox. Moran took a pistol into custody from Willis and identified the pistol (State-1) at the trial. The pistol was a Raven Arms Model P-25 .25 caliber pistol with Serial # 631409. The pistol and its clip were introduced into evidence, but neither contained bullets. Moran also seized a knife and a scabbard from Cox.

Cox contends that the proof is insufficient because there was no showing that Willis was placed in reasonable apprehension of receiving a battery. Cox contends the pistol was never actually pointed at Willis; however, Willis specifically testified it was. The court accepted Willis’ testimony on this point. The court inferred from the fact that Willis grabbed the gun and took it from Cox after she pointed it at him that he was in apprehension of receiving a battery. This is a reasonable inference. In addition, after Cox pulled the gun and pointed it at Willis, he backed away from the male and allowed him to pass. It also could be reasonably inferred from this fact that Willis was in reasonable apprehension of receiving a battery.

Cox contends that the proof is not sufficient because the gun was not loaded and, thus, there is no showing that it was a dangerous weapon. This contention is without merit. State v. Johnston, 207 La. 161, 20 So.2d 741 (1944); State v. Connors, 432 So.2d 308 (La.App. 5th Cir.1983); cf. State v. Bonier, 367 So.2d 824 (La.1979).

Cox contends that the proof is insufficient that she was the offender in the incident because Willis could not identify her and because Sheppard’s identification was uncertain. The juvenile court judge found as a fact that the identification of the juvenile as the offender was sufficient. A review of the facts set forth above shows that this contention is without merit.

There is sufficient evidence in the record to support the juvenile court’s adjudication of delinquency under either a Jackson or an Arceneaux review. Cf. State in Interest of Cortez, 319 So.2d 496 (La.App. 4th Cir.1975), writ denied, 323 So.2d 132 (La.1975).

DECREE

For the foregoing reasons, the adjudication of delinquency and the disposition are affirmed.

AFFIRMED.

      . Counsel for Cox made a motion for credit for time served from the date of original detention (January 16, 1984), but the court denied it. Counsel for Cox then took a supervisory writ to this court from that ruling, which was denied on May 10, 1984. On June 8, 1984, the Louisiana Supreme Court granted a writ giving Cox credit for all time served. State in Interest of Cox, 450 So.2d 1318 (La.1984). The district court judgment was amended to reflect this ruling on June 12, 1984. On September 14, 1984, a request by the State for a rehearing on this ruling was denied. State in Interest of Cox, 456 So.2d 163 (La.1984).

      . The State and Cox both argue this case under the Jackson standard.

      . See the discussion about the distinction between questions of law and fact in the concurring opinion in State v. Ruple, 426 So.2d 249 (La.App. 1st Cir.1983).

      . Since the evidence satisfies both standards of review, it is not necessary to answer the questions posed in this opinion. When we are confronted with a case where the result under Ar-ceneaux is different than that under Jackson, we will be forced to decide.


author: LANIER, Judge. LANIER, J.

text:
    STATE of Louisiana v. Marion COUNTERMAN.
    No. KA 84 0739.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Ossie Brown, Dist. Atty. by Premila Chumbley, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Vincent Wilkins, Jr., Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

The defendant, Marion Counterman, was charged by grand jury indictment with aggravated rape and aggravated burglary in violation of La.R.S. 14:42 and 60, respectively. After a trial by jury, he was found guilty as charged. For the aggravated burglary, he was sentenced to imprisonment in the custody of the Louisiana Department of Corrections (DOC) at hard labor for thirty years. For the aggravated rape, he was sentenced to be imprisoned in the custody of the DOC at hard labor for life without benefit of parole, probation or suspension of sentence, which sentence is to run consecutively with the sentence for aggravated burglary. He was also sen- . tenced to pay the actual cost of prosecution and, in default thereof, to serve an additional one year at hard labor in the custody of the DOC.

PROCEDURAL FACTS

On October 6, 1982, Counterman was indicted by the East Baton Rouge Parish Grand Jury for committing aggravated burglary and aggravated rape on August 22, 1982. On November 10, 1982, he was arraigned and pled not guilty to both charges. He was tried by jury on January 5-6, 1983, and convicted. On February 10, 1983, in the presence of his attorney, he was sentenced. After sentencing, the district court judge advised the defendant that he had “a right to appeal the convictions and the sentences.”

On April 10, 1984, counsel for Counterman filed a motion for an “out-of-time” appeal alleging that “[defendant recently informed this office on April 4, 1984, that he now desires to appeal.” On April 12, 1984, the district court granted the motion without a response from the State and without holding an evidentiary hearing.

PROVIDENCY OF “OUT-OF-TIME” APPEAL

The motion for an appeal of a conviction and sentence in a criminal case “must be made no later than five days after the rendition of the” sentence. La.C.Cr.P. arts. 912(C)(1) and 914. The motion for the appeal in the instant case was made 425 days after the sentence was rendered.

For this court to have appellate jurisdiction over a criminal case, the motion for appeal must be timely filed. State ex rel. McIsaac v. Sigler, 236 La. 773, 109 So.2d 89 (1959); State v. Dartez, 222 La. 9, 62 So.2d 83 (1952); State v. Metoyer, 427 So.2d 93 (La.App. 3rd Cir.1983). If a motion for an appeal has not been timely filed, there is nothing for an appellate court to review, and the appeal should be dismissed. State v. Washington, 278 So.2d 484 (La.1973); State v. Breaux, 441 So.2d 811 (La.App. 3rd Cir.1983).

In State v. Simmons, 390 So.2d 504 (La.1980), the Louisiana Supreme Court recognized that a defendant may be entitled to an “out-of-time” appeal if he was unconstitutionally deprived of his right to appeal. A district court is without authority or jurisdiction to grant' an “out-of-time” appeal on ex parte motion of the defendant. State v. Banks, 457 So.2d 1264 (La.App. 1st Cir.1984); State v. Braxton, 428 So.2d 1153 (La.App. 3rd Cir.1983). A district court can only consider a motion for an “out-of-time” appeal if it is properly framed as an application for post conviction relief pursuant to La.C.Cr.P. art. 924 et seq. State v. Davis, 457 So.2d 848 (La.App. 1st Cir.1984). That was not done in the instant case.

Further, the allegation made herein to support the motion for the “out-of-time” appeal does not show a constitutional deprivation of the right to appeal. Thus, based on the record presently before us, we must conclude that we have no appellate jurisdiction to consider this matter and the appeal must be dismissed. This ruling should not be construed to preclude the defendant from seeking relief with a properly framed application for post conviction relief in the district court.

DECREE

For the foregoing reasons, this appeal is dismissed.

APPEAL DISMISSED.

COLE, CARTER and LANIER, JJ., specially concurring. _

LANIER, J.

In State v. Simmons, 390 So.2d 504, 506 (La.1980), cited in the main opinion, the Louisiana Supreme Court observed as follows:

The Louisiana Constitution of 1974 provides in Article 1, § 19, for the right to judicial review:
‘No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.’
There is a constitutional right in Louisiana to an appeal. This right can only be waived by the defendant himself. State v. Marcell, 320 So.2d 195 (La., 1975). Any waiver of right to appeal must be an informed one. Arrastia v. United States, 455 F.2d 736 (5 Cir.1972); Flanagan v. Henderson, 496 F.2d 1274 (5 Cir.1974). It is apparent that Simmons was not offered an appeal by his attorney. Lowe admitted that he did not contact Simmons after the sentencing about his right to an appeal. An attorney must advise his client of his appellate rights. Lumpkin v. Smith, 439 F.2d 1084 (5 Cir.1971); Riser v. Craven, 501 F.2d 381 (9 Cir.1974). (Bolding added).

In State v. Marcell, 320 So.2d 195, 198 (La.1975), cited in Simmons, the court stated:

We read Article 1, § 19 of the Louisiana Constitution of 1974 as establishing the right to an appeal and as conferring on the accused, and the accused alone, the right to waive this right.[]

We do not agree that Article I, § 19 of the Constitution establishes a right to an appeal. In L. Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 60-62 (1974) appears the following:

Not part of the committee proposal, this section results from a floor amendment designed to cure what the author conceived as a hiatus in the previously adopted article on the judiciary. Under the judiciary article, a criminal defendant has a right of appeal to the Louisiana supreme court if ‘convicted of a felony’ or if ‘a fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed.’ In other criminal matters, no right of appeal to the supreme court is specified; the provision is simply that a defendant has ‘a right of appeal or review, as provided by law.’ The policy, in the case of minor offenses, was to give the legislature freedom to act, particularly with respect to review of convictions in courts of limited jurisdiction which traditionally had been subject to trial de novo in district court. The judiciary article did not constitution-alize trial de novo as the prior constitution had, but left it in the legislature’s province to provide for trial de novo or some other type of review in minor cases. Delegate Jack Avant saw this as a deficiency:
So, the net results of what we have done so far in doing away with the trial de novo, and in adopting the provisions with respect to appellate jurisdiction in Article VII [sic] which we have adopted, is that it is not only possible, but it is inevitable ... that a person can be sentenced to six months in jail, or at least five months and twenty-nine days in jail; he will have no right of appeal, and there will be no right of review based upon any kind of record.
His solution was the amendment that became Section 19. The section does not explicitly require a right of appeal or a record. Rather, it employs a negative approach and states that no person can be ‘subjected to imprisonment or forfeiture of rights or property’ without the right of judicial review based on a record. Thus, even if a right of review based on a record is not granted, the section is not violated so long as a person is not imprisoned or subjected to a forfeiture of rights or property. This peculiar language gives rise to the anomalous possibility that when the right of review based on a record is not available, and one is sentenced to imprisonment, the section will simply prevent subjecting a person to the sentence. It is a situation akin to Argersinger v. Hamlin, by which one does not clearly have the right to counsel at trial, but cannot be imprisoned if he does not have counsel at trial.
In any event, the policy is to encourage the providing of a right of review based on a record. The standards provide a right of review, with no room for discretion. It could be review by a district court of matters decided by courts of limited jurisdiction. When the case is originally in the district court, it must be reviewed by a higher court. Yet, it is ‘review’ — a generic term — and not necessarily an ‘appeal’ as the term of art is used in Article V, § 5. Even if no right of appeal were granted from a city court, the section’s requirements would be met if the supreme court supplied review within its supervisory jurisdiction without full argument, so long as it is based on a record and is a matter of right.[]
[Footnotes omitted].
[Bolding added].

In L. Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765, 802 (1977) appears the following:

Regardless of which court is assigned these cases, it is not the normal appeals procedure that is necessarily required; it is appeal or review that is required. Review could be by some type of appellate examination of a record that is less than the full blown appeal with full briefs and oral argument.
The limited nature of the right of appeal or review in these minor criminal cases prompted further action when the convention was considering the bill of rights. Additional protection for the individual in such cases is provided in Article I, Section 19: ‘No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.’
[Footnote omitted].
[Bolding added].

We agree with Professor Hargrave’s observation that Article I, § 19 does not require a right to appeal or a record, but is a constitutional prohibition against imprisonment or forfeiture of rights or property without a right of judicial review based on a record. We perceive a significant difference between a judicial review and an appeal. Compare La.C.C.P. art. 2081 et seq., La.C.Cr.P. art. 911 et seq., La.C.J.P. art. 97 et seq. and Rules 2 and 3, Uniform Rules, Courts of Appeal with La.C.C.P. art. 2201, La.CJ.P. art. 105, Rule X — Louisiana Supreme Court Rules and Rules 4 and 5, Uniform Rules, Courts of Appeal. We do not agree that a constitutional prohibition against imprisonment or forfeiture of rights or property without a judicial review based on a record can be equated (by way of interpretation) with a constitutional right of appeal. As indicated by Delegate Avant when he proposed the amendment that became Article I, § 19, the right to appeal or review in a criminal case had been provided for previously by the Constitutional Convention in the Judiciary Article (Article V, § 5[D] and [E]), and the purpose of his amendment was to provide for a record for the court to review in non-ap-pealable criminal cases when a defendant exercised his “right to apply to the supreme court under the exercise of its supervisory jurisdiction for a writ of review.” The title of Article I, § 19 (Right to Judicial Review) is not determinative of its substantive meaning. La. Const, of 1974, art. XIV, § 22.

We have cited the Simmons case in the instant case, even though we disagree with its interpretation of Article I, § 19, because we are required to follow it. State v. Petterway, 403 So.2d 1157, 1194 (La.1981). We respectfully suggest that the Louisiana Supreme Court reconsider its present interpretation of Article I, § 19.

APPENDIX A

Amendment

Mr. Poynter Amendment No. 1 {by Mr. Avant], page 4, between lines 19 and 20, insert the following:

“No person shall be subjected to imprisonment or forfeiture of his rights or property without the right of judicial review based upon a complete record of all evidence upon which such judgment is based. This right may be intelligently waived.”

Explanation

Mr. Avant Mr. Chairman and fellow delegates ... to this convention, this amendment supplies something that is an absolute must in view of the present status of this constitution. There are certain courts that are not courts of record. There are certain courts where you may be fined or imprisoned or your property may be forfeited for certain offenses where no record is made. In a municipal court, for example, you can be fined up to three hundred dollars, I believe, and imprisoned up to six months, and there may not be a record of the evidence of the testimony upon which that conviction or sentence is based. Now that is no problem under the present constitution because Article VII, Section 36, of the constitution now provides that in those cases, and in certain civil cases, that the district court has appellate jurisdiction and you can go to the district court and have a trial de novo, which means a new trial where the case is tried by the district judge, without a jury, and you are limited to the same witnesses, of course, who testified in the lower court. But the Judiciary Committee, in its wisdom, and it so far has been concurred in by this convention, eliminated the provision for appeal by trial de novo. It is no longer in the document as it now stands, although it had worked, in my humble opinion, very satisfactorily under the provisions of Article VII, Section 36, for many, many years.

But now, we are faced with this situation1 under the present status of this constitution. And that is that a person may be sentenced to actual imprisonment up to six months; he may be fined up to three hundred dollars, or certain rights or property of his may be declared forfeited in a court where there is no record made of the evidence upon which that sentence is based, and he has no right of appeal. He has no trial de novo; he has no right to appeal. The only thing that he has is the right to apply to the Supreme Court under the exercise of its supervisory jurisdiction for a writ of review.

Now, the way you do that is you attach a copy of all of the records in the lower court and send it to the Supreme Court, and you point out what you feel to be an error, and you ask them to agree with you that there was an error, and ask them to bring the case up and consider it on the record. The problem is that you are not going to have a record. There’s not going to be any record. So, the net results of what we have done so far in doing away with the trial de novo, and in adopting the provisions with respect to appellate jurisdiction in Article VII which we have adopted, is that it is not only possible, but it is inevitable that unless we correct it, that when this constitution becomes effective, if it ever does become effective, that a person can be sentenced to six months in jail, or at least five months and twenty-nine days in jail; he will have no right of appeal, and there will be no right of review based upon any kind of record.

Now, various problems were brought up in connection with this, and I put in, I incorporated specifically in this provision that this is a right which the accused has which may be the subject of an intelligent waiver. Now, let me explain to you what that means.

In_under the law and the constitution, you have in certain cases the right to trial by jury. You have the right to counsel. The court advises you of these rights, tells you, “Mr. So and So, you are charged with thus and such a crime which is a felony; you may be sentenced to up to so many years. If you are convicted you have the right to be tried by a jury. You have the right to counsel; if you can't afford counsel, the court will appoint a lawyer in your behalf. Do you understand those rights?” And he says, “Yes.” “Do you wish those rights or do you want to waive them?” “I waive them.” So he can waive this right intelligently after it has been explained to him. So it’s not going to mean that in every case that’s tried in a municipal court or city court, that you are going to have to have a court reporter and go to all this what has been termed, perhaps, an unduly prohibitive expense in order to supply this man his rights. All you’ve got to do is explain to him his rights, make sure that he understands his rights." If, after explanation and understanding, he waives them, then that’s his business. But the way the situation is now, he does not have that right, and he can be imprisoned up to six months; his property can be forfeited, taken away from him; his driver's license can be taken away from him, even though that may be the way he makes his living, without any right of review based upon a record of the evidence upon which that sentence is based.

And I just respectfully .submit to you that that is not right and that is not proper, and that the right of that kind of review is fundamental and has to be provided.

I urge the adoption of the amendment. [Underscoring added].

      . In State v. LeBlanc, 367 So.2d 335 (La.1979), the court pretermitted a ruling on whether the intelligent waiver of La. Const. of 1974, art. I, § 19 referred to the right of recordation or the right of review.

      . The complete remarks of Delegate Avant are found in 6 Records of the Louisiana Constitutional Convention of 1973: Convention, Transcripts p. 1133 for September 6, 1973, and are attached hereto as Appendix A.

      . It should be noted that the Simmons and Mar-cell interpretation of Article I, § 19 has formed the basis for the opinions in State v. Jackson, 452 So.2d 682 (La.1984); State v. Goodley, 423 So.2d 648 (La.1982); State v. Washington, 380 So.2d 64 (La.1980).
      We agree with the result reached in Simmons. When Simmons was decided in 1980, persons “convicted of a felony" or sentenced to “a fine exceeding five hundred dollars or imprisonment exceeding six months" had a right of appeal pursuant to La. Const. of 1974, art. V, § 5(D)(2). State v. Robinson, 387 So.2d 1143 (La.1980); State v. Jones, 351 So.2d 1194 (La.1977); State v. Ford, 338 So.2d 107 (La.1976); 6 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, p. 721 for August 15, 1973; Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765, 800-801 (1977). However, when the Courts of Appeal of Louisiana were invested with appellate jurisdiction effective July 1, 1982, the right of appeal conferred by La. Const, of 1974, art. V, § 5(D)(2) was limited to cases where “the defendant has been convicted of a capital offense and a penalty of death actually has been imposed”. Compare the language of La. Const. of 1974, art. V, § 5(D)(2) as originally written with La. Const, of 1974, art. V, § 10(A) as amended. Appeal of O’Rourke, 300 Minn. 158, 220 N.W.2d 811 (1974).
      It also should be noted that the Court of Appeal for the Second Circuit has discussed La. Const. of 1974, art. I, § 19 in connection with civil litigation. In re May, 441 So.2d 500 (La.App. 2nd Cir.1983), writ granted, 449 So.2d 1028 (La.1984), aff'd., 452 So.2d 800 (La.App. 2nd Cir.1984); Hamiter v. Hamiter, 419 So.2d 517 (La.App. 2nd Cir.1982), writ denied, 423 So.2d 1140 (La.1982); Harris v. Dupree, 322 So.2d 380 (La.App. 2nd Cir.1975), writ refused, 325 So.2d 612 (La.1976).