text:
    DOW CORNING CORPORATION, Petitioner, v. Allibert GARNER, Kenneth L. Winslow, et al., Respondents.
    No. 83-489.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.
    David F. McIntosh of Corlett, Killian, Hardeman, McIntosh & Levi, Marc Cooper and Sharol L. Wolfe of Greene & Cooper, P.A., Miami, for petitioner.
    Joel S. Perwin of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for respondents.
   PER CURIAM.

Our opinion in Dow Corning Corporation v. Garner, 423 So.2d 1034, 1035 (Fla. 4th DCA 1982), an earlier appearance before us of the instant case contained the following:

We find the orders compelling discovery contain sufficient safeguards to protect petitioner from disclosure of work product, trade secrets, and other privileged information.

In that case petitioner sought protection in discovery proceedings from (1) being required to produce documents alleged to be subject to certain privileges and (2) being required to bear the expense of production and copying.

By its subsequent order of February 8, 1983, the trial court conditioned production upon the posting of bonds. The ultimate assessment of discovery costs was to be upon motion. Petitioner here questions the adequacy of the bonds. We find that certiorari is not an appropriate method of questioning the amount of the bonds because such a defect does not constitute a showing of irreparable harm not remediable upon plenary appeal.

The order of February 8, 1983, goes further, however, and eliminates (by substituting alternative methods) the very safeguards for production that we examined and approved in the earlier case. To that extent the order departs from our mandate and thus constitutes a departure from the essential requirements of the law.

We therefore grant certiorari and direct the trial court to enter an order containing the protections previously approved by this court. Because this may result in added costs of production the trial court may wish to reconsider the amounts of bonds required for the various categories of documents to be produced although we do not imply that the present amounts are either sufficient or insufficient.

CERTIORARI GRANTED.

DOWNEY, LETTS and HERSEY, JJ., concur.


source: Caselaw Access Project

author: SMITH, McFERRIN, Associate Judge.

license: Public Domain

text:
    Bobby Don HURLEY, Appellant, v. Joyce Merryman KEMP, Appellee.
    No. 82-411.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1983.
    Roy Christopher, Mount Dora, for appellant.
    Mary Anne DePetrillo, Tavares, for ap-pellee.
   SMITH, McFERRIN, Associate Judge.

Appellant, the former husband, has appealed an amended order of final judgment finding him in arrears in child support payments and awarding appellee, the former wife, $10,796.15.

The parties hereto were granted a final decree of divorce on April 9, 1965. In the decree, appellant was ordered to pay $100 per month in child support. In September, 1967 the parties agreed to waive these support payments for an indefinite period until appellee gave appellant written notice to resume payments.

On January 22, 1981 appellee petitioned the trial court for enforcement of the divorce decree, claiming that appellant was in arrears in his child support payments. The trial court took evidence which included appellee’s testimony that on two occasions (1969 and 1974) she gave the written notice required in the waiver agreement. A letter dated September, 1978 from appellee’s attorney to appellant demanding a resumption of payments was also introduced.

• The trial court found that the parties had waived child support beginning September 1,1967 but that it was supposed to resume in the fall of 1969. Since the term “fall” as used in appellee’s testimony was somewhat imprecise, the trial judge ruled that child support was to resume in January of 1970.

Appellant argues that there is no evidence in the record to support the finding of a written demand prior to the attorney’s letter of September, 1978. However, this argument ignores the appellee’s testimony described above. It was for the trial court to evaluate and weigh the appellee’s testimony and to make its finding based on the demeanor and credibility of the witnesses. The only question on appeal is whether the judgment of the trial court is based on substantial, competent evidence. Delgado v. Strong, 360 So.2d 73 (Fla.1978); Marshall v. Johnson, 392 So.2d 249 (Fla.1980). We find that the testimony of record does amount to substantial, competent evidence.

Appellant’s second point on appeal is without merit. Accordingly, the judgment being appealed should be affirmed. Appel-lee’s motion for attorney’s fees on appeal is granted and is further remanded to the trial court for the setting of a reasonable amount.

AFFIRMED.

COBB and SHARP, JJ., concur.


author: SHARP, Judge.

text:
    James Weldon McCOY and Patricia Ann McCoy, his wife, Appellants, v. William E. HOFFMEISTER, M.D. and Michael F. Brown, M.D., Appellees.
    No. 82-880.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1983.
    Marón E. Lovell, of Marón E. Lovell, P.A., Orlando, for appellants.
    Martin B. Unger, of Swann & Haddock, P.A., Orlando, for appellee Hoffmeister.
    Joseph M. Taraska, of Taraska & Hill, P.A., Orlando, for appellee Brown.
   SHARP, Judge.

James and Patricia McCoy appeal from a final summary judgment entered on their medical malpractice claim in favor of appel-lees William E. Hoffmeister, M.D., and Michael P. Brown, M.D. Appellees and Dr. Robert Shear, a co-defendant, were members of the same professional association. Each doctor treated James McCoy at various times from May 1976 through March 1979. McCoy claims he suffered permanent injuries as a result of the appellees’ negligence. The trial judge granted summary judgment as to Hoffmeister and Brown, but denied it as to Shear and the professional association. We reverse as to Hoffmeister and Brown.

In opposition to the motions for summary judgment, the appellants filed the affidavit of their expert witness, Dr. James Lake, which would have created an issue of fact concerning appellees’ negligence and malpractice. The basis for the summary judgment was the failure of affiant Lake to allege he was a member of the same specialty as the appellees, or that he possessed sufficient training, experience or knowledge to enable him to testify about the acceptable standards of care in their medical specialties. § 768.45(2)(c), Fla.Stat. (1981). The affidavit alleged only that Lake was licensed to practice medicine in Florida. At the hearing on the motions for summary judgment, the court granted an ore terns motion to strike the affidavit and denied appellants’ ore terns motion to amend the affidavit to include Lake’s qualifications to testify to matters contained in the affidavit.

Summary judgments are not favored in malpractice suits. The non-mov-ant’s right to trial should not be foreclosed if it has not been conclusively shown that he cannot offer proof to support his position. Holl v. Talcott, 191 So.2d 40 (Fla. 1966). Here there was no proof that Lake was not qualified to give expert testimony. See Chenoweth v. Kemp, 396 So.2d 1122 (Fla.1981). Further, summary judgment should not be granted because of technical deficiencies in the non-movant’s affidavit. Holl. The technical deficiencies in the expert’s affidavit in Holl were: failing to state what was wrong with the patient; offering no medical explanation for the charge of negligence; and failing to connect the alleged negligence to the patient’s injury. The deficiency in this case, even if essential, is correctable, and appellants should have been permitted to make the correction.

Because the court erred in granting the motion for summary judgment, we reverse and remand for further proceedings in this cause.

REVERSED AND REMANDED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    FALLS CHASE, LTD., etc., et al., appellants/petitioners, v. George E. TORNWALL, et al., appellees, respondents.
    No. AS-349.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.
   ORDER

Upon consideration of the Stipulation of Dismissal filed by the parties, it is ORDERED that the opinion heretofore filed on August 5, 1983, is withdrawn, and this appeal is DISMISSED.


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. Alicio SANCHEZ, Appellee.
    No. 82-2563.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 1983.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Upon the defendant’s confession of error in the trial court’s ruling granting his sworn motion to dismiss the information, the order under review is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


text:
    Donald G. JONES and Gloria Jones Individually and as the Natural Tutors of Their Minor Son, Donald G. Jones, Jr. v. CITY OF KENNER, City of Kenner Fire Department Emergency Ambulance and the CNA Insurance Company.
    No. 83-C-0490.
    Supreme Court of Louisiana.
    April 5, 1983.
   PER CURIAM.

In this case plaintiffs sue the City of Kenner, the Kenner Fire Department Emergency Ambulance, a division of the City of Kenner, and CNA Insurance Company, their insurer, to recover damages arising from an accident to a minor child. The infant fell and struck his head; because he stopped breathing, the Kenner ambulance was summoned. The infant’s resulting coma is blamed on negligence of the ambulance personnel.

The trial court granted a motion for summary judgment and the court of appeal affirmed. Both courts held that R.S. 37:1732 granted Kenner immunity.

The immunity granted in R.S. 37:1732(B) is to firemen and others, and is designated as personal to the fireman and “... shall not inure to the benefit of any employer ... nor ... any insurer, except that no parish governing authority ... shall be liable ... ” Both courts below held that the words “parish governing authority” included the City of Kenner.

The words of the statute are clear and its expressions are not dubious. “When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.” C.C. 13.

The judgment of the court of appeal is reversed, and the case is remanded to the court of appeal for reconsideration and decision not inconsistent with this opinion.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. John D. FLOYD.
    No. 82-KA-0992.
    Supreme Court of Louisiana.
    June 27, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John Craft, David Plav-nicky, Asst. Dist. Attys., for plaintiff-appel-lee.
    Walter Sentenn, Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

John D. Floyd was indicted for two counts of second degree murder, the first count for the murder of William Hines, Jr., and the second count, for the murder of Rodney Robinson. He was ultimately tried by a judge alone, convicted for the second degree murder of Hines, and found not guilty of the murder of Robinson. He was, in due course, sentenced, and now appeals, arguing four assignments of error.

On November 26,1980, William Hines, Jr. was discovered lying beside his bed in his apartment, nude, dead from multiple stab wounds. On November 29, 1980, the body of Robinson was discovered in the hallway of a New Orleans hotel, nude, stabbed to death.

Police investigation developed similar factors in the two killings. Both victims were homosexuals. Scientific examinations of one of the victims and his room revealed recent sexual activity. Hines’ apartment revealed no signs of struggle, no evidence of burglary, and no evidence that the apartment had been entered by force. Hines’ clothes were found neatly draped over a chair. Since the body of Hines was discovered approximately thirty-six hours after his death, scientific examination of the body revealed no clue; background information, however, disclosed that Hines had been an active homosexual. Investigating police theorized that the two homicides were linked and that one individual might have committed both crimes.

The police learned that a man called “Crazy Johnny” had made statements which linked him with the killings. One of the investigating policemen was familiar with the man called “Crazy Johnny,” but did not know his name. Two French Quarter residents who also knew “Crazy Johnny” selected John D. Floyd’s photograph from a picture lineup presented by the New Orleans police. One of those persons, Stephen Edwards, who identified the defendant as “Crazy Johnny,” operated a French Quarter bar. He related to police an encounter with Floyd on the sidewalk near Edwards’ establishment. Edwards warned Floyd not to enter Edwards’ bar because Floyd had been banned from the bar for recent disruptive behavior. Floyd, according to Edwards, then told Edwards to leave him alone, that “I already wasted one person.” Edwards then asked if the victim had been the man who lived around the corner (Hines) and Floyd answered, “Yeah. On Governor Nicholls.”

Another witness, Gerald Griffin, had accompanied Floyd to the detoxification unit in New Orleans Charity Hospital on the morning of November 29, 1980. On this occasion, Floyd had asked Griffin if Griffin knew about the hotel killing (which had just occurred on November 29). Floyd then stated that people who were hospitalized as mentally ill were sometimes found not to be responsible for their actions. After the trip to the hospital, Griffin saw an account of the hotel killing and reported his conversation with Floyd to the police, believing that it might have revealed a connection between Floyd and the Robinson killing.

A search of French Quarter bars finally led Detective Dillman and Officer Reilly to Floyd at a bar called “The Louisiana Purchase.” These policemen had a drink with Floyd, talked with him for twenty minutes or so, asked him to come outside, handcuffed him, walked him a few blocks to the officers’ automobile, and carried him to police headquarters, where Floyd confessed.

Floyd gave two confessions, one to the murder of Hines and one to the murder of Robinson. Since he was found not guilty of the murder of Robinson (evidence showed that Robinson’s assailant had been a black man with Type A blood; Floyd is white with Type B blood), there are no issues before us in that case.

Assignment of Error No. 1

This assignment relates to the denial of motions to suppress the confession. The confession was attacked as having been coerced, fabricated, and the product of an illegal arrest for which there was no probable cause.

The defendant claimed that he had been beaten during his interrogation, that he had been struck and kicked and that his head had been split open and was bleeding.

The police denied the use of any force. Pictures were introduced which apparently showed no evidence of the beating described by the defendant. A news photographer testified, and his pictures were introduced. The photographer saw no evidence of violence having been used upon the defendant, and his photographs apparently disclosed none.

The evidence showed that the defendant first denied any knowledge of the killing, explained his public bragging about killing to have been mere exhibitionism, but eventually began to weep, when the officers probed his drug abuse, and confessed.

The officers had taken Floyd in custody at 5:00 p.m. When the arresting officers had been told enough by Floyd to confirm their belief that Floyd was guilty of the two murders, they sent for Detective Rice, to whom the Robinson case had been assigned. While they waited in the detective headquarters, they sent for a supper of fried chicken, and sent for some chewing tobacco at Floyd’s request. Floyd and the police ate their evening meal together, after which Floyd gave two separate written statements, which were typed by the police officers as Floyd answered their questions. The first was a confession to the murder of Hines, the second to the murder, of Robinson.

There was clearly probable cause for the arrest of the defendant Floyd. He had been identified as the “Crazy Johnny” who had bragged in French Quarter bars about having killed the two men, and who had made statements to Edwards that he had killed Hines and to Griffin a statement which indicated a connection to the murder of Robinson. Both victims were homosexuals. The investigation of Floyd showed that he was homosexual, that he picked up sexual companions in bars, had no regular place of abode, and, as a practice, exchanged homosexual relations for places to stay.

Murder had been committed. Floyd claimed to have killed one victim and made statements which connected him with the other victim. There was no lack of probable cause for the warrantless arrest.

The state bore its burden of proving that the confession was free and voluntary, and not forced by fear, duress, inducements or promises. The defendant was thoroughly and adequately advised of his constitutional rights. He was not intoxicated at the time the confessions were given. He was able to understand the warnings, and that the statements would be used against him.

There was no error in the ruling of the trial judge in denying the motion to suppress, and admitting the confession into evidence.

Assignment of Error No. 2

Defendant asserts that the trial court erred in finding that there was sufficient evidence to convict him of Hines’ murder.

The evidence against the defendant consisted of his confession in which he described the killing of Hines. He had bragged publicly about the killing. Homosexual activity brought the victim and the defendant together. He had threatened another witness, one of his sexual partners who had refused to give him money, that he would “take care” of him “like I did the one at the hotel.”

This assignment of error lacks merit.

Assignment of Error No. 3

This assignment of error complains of the denial of a motion for a new trial, for reasons discussed in Assignments of Error Nos. 1 and 2, and lacks merit.

Assignment of Error No. 4

Defendant contends that the trial court erred in refusing to allow him to question Detective Rice regarding past cases where confessions he had obtained from suspects were suppressed due to his misconduct.

Evidence is admissible in a criminal case only if it is relevant to a material issue. R.S. 15:435. Relevant evidence is defined in R.S. 15:441 as:

“... that tending to show the commission of the offense and the intent, or intending to negative the commission of the offense and the intent.
Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

Although the prior record of a police officer regarding his misconduct may be relevant, the past conduct of Detective Rice was not relevant to the admissibility of Floyd’s confession to the murder of Hines. Floyd testified that he was beaten and threatened by Detective Dillman during the period he and Dillman, were alone. Rice did not arrive at the homicide office until approximately 7:30 p.m., after Floyd had indicated that he wanted to confess to both the Hines and the Robinson murders. Rice was present when the written statements were taken from Floyd. It therefore appears that Rice was not only absent when Floyd originally confessed to Dillman and Officer Reilly, but he was also not present during the time period Floyd claims that he was beaten and threatened. Accordingly, any evidence of Rice’s past misdeeds would have no relevance to the admissibility of Floyd’s confession in the Hines case.

Evidence of prior misconduct on the part of Rice is not relevant to a material issue in this case, since only the admissibility of the confession to the Hines murder is at issue. The admissibility of the confession to the Robinson murder is not at issue in this case; defendant has been acquitted of the Robinson murder.

For these reasons, the conviction and sentence of the defendant, John D. Floyd, are affirmed.


text:
    STATE of Louisiana ex rel., Robert FORTENBERRY v. John T. KING, et al. Secretary, Department of Corrections.
    No. 83-KH-1417.
    Supreme Court of Louisiana.
    July 13, 1983.
   PER CURIAM.

On November 13,1979, the Judge of Section A of the Criminal District Court for the Parish of Orleans, in accordance with a plea bargain, sentenced relator to six years imprisonment at hard labor, to run concurrently with another sentence previously imposed in Mississippi. On December 29, 1982, in response to relator’s application for postconviction relief, the successor judge ordered the Louisiana Department of Corrections to deliver relator to the Mississippi Department of Corrections.

On February 7, 1983, relator executed a waiver of extradition proceedings, and the Judge of the 20th Judicial District Court (the district in which Dixon Correctional Institute is located) again ordered the Louisiana Department of Corrections to deliver relator to the Mississippi officials.

The Louisiana Department of Corrections did not comply with these court orders or seek modification thereof, but merely requested Mississippi officials to prepare and secure a “governor’s executive agreement”. On June 24, 1983, relator then applied to this court for supervisory relief.

At this court’s request, the Louisiana Department of Corrections filed a response to relator’s application, asserting that La.C. Cr.P. Art. 272 requires a re-extradition agreement before the demanded person is surrendered to the demanding state. The Department further asserted that it would be derelict in its duty to allow a prisoner to be sent to another jurisdiction without such an agreement.

The Department of Corrections, even if correct in its interpretation of Article 272, may not simply ignore a court order. If the Department believed that the order was premature or otherwise improper, the appropriate procedure was to seek modification of the order from the issuing court, after which either the Department or the relator could seek further review by applying to the appropriate appellate court.

Accordingly, relator’s application is granted, and it is ordered that the Department of Corrections show caqse in the 20th Judicial District Court why the order of that court has not been effectuated.

      . The relator in the present case could also have sought to have the conviction set aside on the basis that the plea bargain could not be fulfilled.


text:
    Alvin R. MOORE, Jr. v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KD-1746.
    Supreme Court of Louisiana.
    Aug. 8, 1983.
   DIXON, Chief Justice.

I would grant the writ for the following reasons.

When this case was before us on appeal, the defendant was represented by the same lawyer who tried the case in the district court. The issue of ineffective counsel on the death penalty phase of the case was not raised on appeal. No application for rehearing was filed in this court. The first time defendant complained of ineffectiveness of counsel was last week, in a pleading which sought an out-of-time rehearing. That request was denied.

Now, in a post conviction remedy application, defendant contends that his due process right to effective counsel has been violated.

The defendant put on no evidence in the penalty phase of the case. His argument to the jury is reproduced in thirty-nine lines of type in the application. It did not constitute a plea for the life of defendant; it did not point to any mitigating circumstances, not even the youth of the defendant. It indicated that if the jury made a mistake, “the mistake can be corrected, no doubt

The argument in this case is similar to the one in State v. Myles, 389 So.2d 12 (La.1980), in which this court ordered a new trial for want of effective counsel on the penalty phase in a capital case. In the Myles case we held that for a death penalty to stand, the defendant must have received “the competent assistance of an attorney acting as a diligent, conscientious advocate for his life.” (389 So.2d at 30).

In the Myles case, on remand, a lawyer was appointed who was diligent and effective. The jury deliberated for several hours, but could not reach a verdict. Myles was sentenced to life imprisonment.

In the case of Alvin Moore the killing was horrible, brutal, bestial, worse even than the killing in State v. Myles. There were, however, mitigating circumstances which were not placed before the jury, according to affidavits contained in the application before us. There were arguments which could have been made against the imposition of the death penalty. None were made.

Nevertheless, it is not possible in the state of this record for us to say that Moore would receive the death penalty regardless of defense efforts at the sentencing hearing.

Therefore, I would grant an evidentiary hearing to make a record and a decision on whether Moore had the benefit of effective assistance of counsel on the penalty phase.


text:
    STATE of Louisiana v. William Hale CONGER.
    No. 83-KH-1234.
    Supreme Court of Louisiana.
    June 10, 1983.
   In re William Hale Conger, applying for remedial writs. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana ex rel., David ODOM, v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-KH-2929.
    Supreme Court of Louisiana.
    June 17, 1983.
   In re David Odom, applying for writs of habeas corpus, certiorari, mandamus and prohibition. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 3-80-661, Section III.

Denied.


author: Denied.

text:
    STATE of Louisiana v. Thomas E. HUDSON, Herman Coleman, Kim Ray Davis, Earnest Bell and Lindwood Hamilton.
    No. 83-KK-1171.
    Supreme Court of Louisiana.
    June 27, 1983.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Criminal District Court, Parish of Orleans. No. 294767. Fourth Circuit Court of Appeal. No. K-0885.

Denied.


author: GAUDIN, Judge. PER CURIAM.

text:
    Donald G. JONES and Gloria Jones, Individually and as the Natural Tutors of Their Minor Son, Donald G. Jones, Jr. v. CITY OF KENNER, City of Kenner Fire Department Emergency Ambulance and the CNA Insurance Company.
    No. 5-305.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 7, 1983.
    On Rehearing April 11, 1983.
    Jerome M. Volk Jr., Kenner, for plaintiffs-appellants.
    Francis G. Weller, Deutsch, Kerrigan & Stiles, New Orleans, for defendants-appel-lees.
    Before BOUTALL, BOWES and GAU-DIN, JJ.
   GAUDIN, Judge.

An ambulance owned by the City of Ken-ner Fire Department and manned by two firemen answered an emergency call and rushed a stricken two-year-old child to East Jefferson General Hospital. The parents of the child later filed this suit, contending primarily that the ambulance attendants were negligent in not immediately administering oxygen.

The City responded with a motion for summary judgment on the grounds:

(1) The City was immune from tort liability if the cause of action arose from the rendering of emergency care; and

(2) There was no actionable negligence on the part of the firemen.

The trial judge ruled that the City was immune and granted the motion, and the child’s parents appealed to this Court.

We hold that the wording of LSA-R.S. 37:1732(B) does grant the City of Kenner immunity and we affirm the granting of the motion for summary judgment.

FACTS

Mrs. Millie Jones was babysitting for her grandson, Donald G. Jones, Jr., when the young boy either fell from a sofa and struck his head or else was unable to breathe properly because food or vomit became lodged in his throat, blocking air passage.

Regardless, the emergency call was made at 6:52 p.m. and the ambulance, with David Townsend and Michael Simms aboard, was dispatched to 2515 Short Street in Kenner.

Townsend was asked if he had any idea what type of emergency he and Simms were responding to.

He answered:

“No, I didn’t. I didn’t know if it would be a stabbing, a shooting, heart attack or what.”

The ambulance arrived on Short Street at 6:55 and Townsend and Simms found an unconscious child with a weak pulse. Mrs. Jones was hysterical; she was “screaming and hollering”, Townsend stated.

Townsend and Simms were in the residence for less than four minutes. They carried the child to the ambulance and by 6:59 they were en route to the hospital with oxygen being administered to the young boy. The ambulance arrived at East Jefferson Hospital at 7:05, where it was met by hospital personnel, including Dr. Andrew Rinker.

Dr. Rinker thought the child had “... a laryngeal spasm or a foreign body in the windpipe producing anoxia.”

Regrettably, the young boy never recovered and died approximately five (5) years after the accident.

In addition to Dr. Rinker, the child was treated by Dr. Evan Howell, a neurologist, who first saw the young boy six (6) days after he was admitted to the hospital. Dr. Howell said in his deposition that “... the child vomited and apparently aspirated on the contents of his stomach.”

Dr. Howell was asked if there was anything the emergency crew could have done to alter the course of events or to reverse what was in the process of occurring.

He answered:

“I doubt there’s anything they could do to significantly alter the outcome of the case.
“... to ask two firemen to come upon a scene like this ... is asking a bit too much for their degree of training and responsibility and technical know how.”

Dr. Howell was then asked what a trained medical crew could have done.

He said:

“I wonder if they could have altered things either. Then you’re talking about having to have all sorts of equipment to take care of a patient like this.”

IS KENNER IMMUNE?

The City bases its immunity contention on LSA-R.S. 37:1732, which reads:

IMMUNITY FROM LIABILITY FOR EMERGENCY MEDICAL ASSISTANCE OR FIRST AID
(A) Any fireman, policeman or member of an ambulance or rescue squad who holds a valid current certification by the American Red Cross, L.S.U. Fireman Training Rescue Program or United States Bureau of Mines, who renders emergency care, first aid or rescue while in the performance of his duties at the scene of an emergency, or moves a person receiving such care, first aid or rescue to a hospital or other place of medical care shall not be individually liable to such person for civil damages as a result of acts or omissions in rendering the emergency care, first aid, rescue or movement of such person receiving same to a hospital or other place of medical care except for acts or omissions intentionally designed to harm or grossly negligent acts or omissions which result in harm to such person, but nothing herein shall receive the driver of an ambulance or other emergency or rescue vehicle from liability arising from the operation or use of such vehicle.
(B) The immunity herein granted to a fireman, policeman or member of an ambulance or rescue squad in. accordance with Subsection (A) of this section shall be personal to him and shall not inure to the benefit of any employer or other person legally responsible for the acts or omissions of such fireman, policeman or member of an ambulance or rescue squad nor shall it inure to the benefit of any insurer, except that no parish governing authority engaged in rendering ambulance services nor its insurer with respect to such ambulance services shall be liable for the act or omission of any member of any ambulance squad employed by it unless such individual would be personally liable therefor under the provisions of Subsection (A) hereof.
(C) In order for any fireman, policeman or member of an ambulance or rescue squad to receive the benefit of the exemption from civil liability provided for herein, he must first have taken and successfully completed the standard first aid course recognized or approved by the American Red Cross or the United States Bureau of Mines or the L.S.U. Fireman Training Rescue Program and further he shall have a valid certification from the Red Cross or the United States Bureau of Mines or the L.S.U. Fireman Training Rescue Program that he has successfully completed any necessary training or refresher courses, or shall have successfully completed a first aid course having standards at least equal to the standard first aid course recognized or approved by the American Red Cross or the United States Bureau of Mines or the L.S.U. Fireman Training Rescue Program.

The record indicates that both Townsend and Simms have the statutorily required training and qualifications; therefore, neither could be individually liable.

Kenner argues that it, too, is immune. Section B states that “... no parish governing authority ... shall be liable ...” and the City contends that it is included in this wordage. We agree.

Although there are no reported cases directly on point, we are of the opinion that the clear legislative intent and the purpose of the statute was to relieve all governmental units engaged in rendering ambulance services from civil responsibility.

LSA-C.C. art. 18 states:

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

The only possibly dubious portion of Section B is the fact that the word “parish” is used, giving rise to appellant’s argument that only ambulances belonging to the actual 64 parishes are included and that ambulances owned by municipalities (such as Kenner) and lesser parochial agencies are excluded. Such an interpretation would be unreasonably restrictive.

From Waggoner v. Kellogg-Moore Oil Company, 375 So.2d 197 (La.App. 2nd Cir. 1979):

“Court has duty to apply statute as written unless such application would lead to absurd result in which case the court must interpret statute in such manner as to reach reasonable result consistent with legislative intent.”

See also Arceneaux v. Hawkins, 376 So.2d 362 (La.App. 3rd Cir.1979), which holds:

“Court’s objective in construing a statute is to ascertain legislative intent and interpret law as to give it meaning lawmakers obviously intended, and not to construe legislation so rigidly as to give it a preposterous or strange meaning; statutes must be given reasonable interpretation.”

Appellants, citing Board of Commissioners of the Port of New Orleans v. Splendour Shipping & Enterprises Company, 273 So.2d 19 (La.1973), believe that “... governmental responsibility is needed more today than ever. There is hardly any sector of private life and activity free from governmental intervention.”

We find no fault with this reasoning, but providing ambulance service for ill and needy citizens can hardly be called an intervention. In Splendour, the governmental activity complained of was the improper design and construction of a bridge, which allegedly constituted a hazard and obstruction to navigation on the Industrial Canal.

CONCLUSION

In explaining his ruling on the motion for summary judgment, the trial judge said:

“... I believe that it should include City of Kenner as well. I don’t think it includes only the unincorporated areas of the Parish of Jefferson.”

The district judge obviously based his decree on the applicability of LSA-R.S. 37:1732. He did not comment on the validity of the City’s second argument — i.e., that there wasn’t any actionable negligence— but the record would support this contention as well. There are no material issues of contested fact and the procedure followed by Townsend and Simms, from start to finish, shows no impropriety of any kind.

For these reasons, we affirm the granting of the motion for summary judgment which dismissed the City of Kenner from this proceeding.

AFFIRMED.

ON REHEARING

PER CURIAM.

The Supreme Court of Louisiana has determined that the City of Kenner is not granted statutory immunity by the provisions of LSA-R.S. 37:1732(B). This case has been remanded to the 5th Circuit Court of Appeal for “... reconsideration and decision ...” In its motion for summary judgment in the district court and in the presentation of its case before this Court, the City of Kenner contended that it was statutorily immune and that there were no genuine issues of material fact.

Following the Supreme Court’s directive, we shall reconsider this matter at 11:30 a.m. on Thursday, the 12th day of May, 1983. Inasmuch as this case has already been fully orally argued, additional oral arguments are not required; however, supplemental briefs may be filed on or before May 7, 1983.

      . LSA-R.S. 37:1732


author: EDWARDS, Judge.

text:
    LOUISIANA ASSOCIATION OF PLANNING AND DEVELOPMENT DISTRICTS; Regional Planning Commission For Jefferson, Orleans, St. Bernard and St. Tammany; Capital Economic Development District Council, Inc.; Capital Regional Planning Commission; Evangeline Economic Development District; Imperial Calcasieu Regional Planning & Development Commission; Kisatchie-Delta Regional Planning & Development District; North Delta Regional & Development District, Inc. and Gerald Mouton v. Governor David C. TREEN and the State of Louisiana.
    No. 83-CA-0207.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1983.

      Ignatz Kiefer, New Orleans, for plaintiffs.
    Ray Mongrue and James Hrdlicka, Atty. General’s Office, Baton Rouge, for defendants.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiffs, the Louisiana Association of Planning and Development Districts, the various planning and development districts which belong to that organization and one private citizen, brought this suit for declaratory judgment and writ of mandamus against Governor David C. Treen and the State of Louisiana.

The following facts gave rise to plaintiffs’ suit. The 1982-83 Executive Budget for the State of Louisiana submitted by Governor Treen recommended a $1,000,-000.00 appropriation to the Louisiana State Planning Office under the category of “Other Charges.” This sum was designated for distribution to the various planning and development districts which are plaintiffs herein. This recommended appropriation was omitted from the General Appropriations Bill submitted in the Louisiana House of Representatives. However, the House of Representatives amended that bill by adding a $1,000,000.00 appropriation to the Department of Urban and Community Affairs (“DUCA”) for distribution to the districts. That amendment was in the .form of a line item which contained both the $1,000,000.00 appropriation and a formula for distributing the money to the districts. When the General Appropriations Bill reached the Seriate Finance Committee it was again amended. The $1,000,000.00 DUCA appropriation, designated for the districts, was shifted to the “Other Charges” section of the DUCA appropriation, raising the total of that section to $35,204,733.00. However, the funding formula language of the former line item was retained as a separate item. The General Appropriations Bill was in this form when it was sent to Governor Treen. On July 10, 1982, the governor signed, the General Appropriations Bill, which became Act 13 of 1982. The governor vetoed the item which contained the formula for distributing the $1,000,000.00 to the districts. He did not, however, veto the “Other Charges” category of the DUCA budget, which included the $1,000,000.00 appropriation. On October 22, 1982, Governor Treen issued Executive Order No. DCT 82-23 which provides, in pertinent part, as follows:

“NOW, THEREFORE, pursuant to the authority granted me by R.S. 39:55, I hereby prohibit the allotment and expenditure of $1,000,000 by the Department of Urban and Community Affairs to the Economic Development Districts.”

Plaintiffs brought this action, seeking a declaratory judgment that the governor’s veto and freeze order were null and void. They also requested a writ of mandamus ordering the defendants to distribute the $1,000,000.00 to the various districts. Defendants filed exceptions of no right of action, lack of procedural capacity and no cause of action, which were referred to the merits by the trial court.

At the conclusion of trial, the trial court overruled defendants’ exceptions and rendered judgment in favor of plaintiffs on the merits. The court declared the governor’s attempted veto of the appropriation for the districts unconstitutional and without effect. Additionally, it declared Executive Order No. DCT 82-23 illegal, null and void. Finally, the trial court issued the requested writ of mandamus, ordering defendants to distribute the $1,000,000.00 to the districts pursuant to the funding formula contained in the General Appropriations Act. Defendants’ motion for new trial with respect to the issuance of mandamus was granted and the trial court rendered a second judgment denying plaintiffs’ request for mandamus.

Defendants have appealed the district court’s judgment. They assert that the district court erred in overruling their various exceptions, and declaring the governor’s attempted veto invalid and in declaring Executive Order No. DCT 82-23 to be null and void. Plaintiffs have also appealed, contending that the trial court erred in refusing to issue the requested writ of mandamus.

We pretermit discussion of the trial court’s rulings with respect to defendants’ exceptions and the constitutionality and validity of the governor’s veto, because we conclude that the trial court’s ruling with respect to the executive order was erroneous and because our ruling with respect to that issue will terminate this litigation. Assuming, arguendo, that the exceptions were properly denied and that the court was correct in finding the governor’s veto unconstitutional and of no effect, we conclude that the governor had the power to block distribution of the $1,000,000.00 to the districts by way of executive order.

Plaintiffs contended, and the trial court held, that Executive Order No. DCT 82-83 was invalid because it violated LSA-R.S. 39:55. That statute empowers the governor to take certain action in order to prevent deficit spending during the course of a fiscal year. LSA-R.S. 39:55 provides, in pertinent part, as follows:

“If at any time during the fiscal year, the governor should find or the Legislative Budget Committee or the commissioner of administration should report to him, that the receipts of the treasury are falling short or appear likely to fall short of the revenue estimates for the fiscal year and that a cash deficit is likely to be incurred, the governor shall have full power and authority to reduce all allotments then in force as well as future requests for allotments of appropriations. In order that the expenditures from appropriations made in the general appropriations act for the remainder of the year will not exceed receipts of the treasury, the governor may direct that there be across-the-board cuts in total allotments of appropriations for the remainder of the year or for any monthly or quarterly period of the fiscal year, or he shall have authority to issue executive orders in the form of freeze orders prohibiting the expenditure of funds for specified items or purposes, or the governor may issue executive orders in a combination of any of the foregoing means of preventing the occurrence of a cash deficit in the state treasury.
“If on the basis of information supplied by the commissioner of administration that the state’s revenues appear to be less than the authorized appropriations or expenditures, or if it should appear that the revenues may be less than the amount necessary to pay the appropriations contained in the general appropriations act, the governor is empowered to take such steps as deemed necessary to prevent the occurrence of a cash deficit.
“Pursuant to the provisions of this Section, the governor shall have authority within any month of the fiscal year to direct the Division of Administration to disapprove warrants drawn upon the state treasury which are in excess of amounts approved by the governor pursuant to provisions of this Section. Pursuant to the authority contained in this Section, the governor may order reduction in warrants drawn upon the treasury both as to sums appropriated by the general appropriations act as well as pursuant to any statutory dedications of funds of revenue of the state from whatever source derived.
“Upon direction by the governor, the Division of Administration shall not approve warrants and the state treasurer shall not honor warrants drawn upon the state treasury in excess of the amounts approved by the governor, and all warrants approved by the Division of Administration and paid by the state treasurer in conformity with the provisions of this Section shall conform to the executive orders of the governor which may be issued pursuant to this Section.
“Before any such reduction to any budgetary unit can exceed ten percent of the amount appropriated to that unit, such excess reduction must be approved by a majority of the legislature by certified mail ballot sent out by the interim emergency board with return receipt requested.”

The statute provides that any reduction of funds to a budgetary unit which exceeds ten percent of the amount appropriated to that unit must have legislative approval. The trial court held that Executive Order No.'DCT 82-23 was invalid because it exceeded that ten percent limitation.

LSA-R.S. 39:55 speaks in terms of a “budgetary unit.” The “budgetary unit” which was to receive the $1,000,000.00 in question is DUCA. LSA-R.S. 39:2(7). The total appropriation for DUCA under Act 13 of 1982 was $37,352,621.00. Ten percent of that amount is $3,735,262.10. Governor Treen’s executive order clearly did not order a reduction of a sum in excess of that amount.

However, the trial court held that only approximately six and one-half million dollars of the funds appropriated to DUCA should be considered in calculating the ten percent limit since $30,768,976.00 of the funds appropriated were federal funds. The court held that the ten percent limitation of LSA-R.S. 39:55 must be calculated with regard only to state generated funds appropriated to a budgetary unit. Since the $1,000,000.00 reduction ordered by Governor Treen was greater than ten percent of the state generated funds appropriated to DUCA, the court concluded that the order violated LSA-R.S. 39:55 and was, therefore, null and void.

We conclude that the trial court erred in holding that funds from federal sources should not be included when calculating the ten percent limitation of LSA-R.S. 39:55. As noted above, that statute prohibits reductions to any “budgetary unit” greater than “ten percent of the amount appropriated to that unit.” The statute draws no distinction between the sources of the appropriated funds for purposes of calculating the ten percent limitation. Funds derived from federal sources should be included when calculating the ten percent limitation of LSA-R.S. 39:55.

Support for this conclusion is found in other statutes dealing with public finance. LSA-R.S. 39:2(2) defines “appropriation” as follows:

“ ‘Appropriation’ means an authorization by the legislature to a budget unit to expend from public funds a sum of money, for purposes designated, under the procedure prescribed in this Chapter.”

LSA-R.S. 39:84 A provides:

“No state agency shall make expenditures of any federal funds, whether such funds are advanced prior to expenditure or as reimbursement, unless such expenditures are made pursuant to specific appropriations by the legislature.”

These statutes demonstrate that federal funds can only be made available to a budgetary unit by way of an appropriation of the legislature.

Plaintiffs argue that LSA-R.S. 39:55 is concerned with the situation where state revenues fall below what was anticipated and that the governor should be limited to making a ten percent reduction in state generated revenues appropriated to a budgetary unit. We agree that the intent of that legislation is to enable the governor to reduce state expenditures when state revenues decline during the course of a fiscal year. However, we also believe that the ten percent limitation provision was intended to insure that each budgetary unit is assured of receiving ninety percent of its appropriated funding unless the members of the legislature deem otherwise. Thus, the statute guarantees that the governor will spread any needed budget reduction out over a number of units. The mere fact that a portion of a budgetary unit’s funding comes from federal sources should not serve to prevent the governor from cutting its budget in a proportion equal to the cuts which he can make in budgetary units which receive no federal funds.

We therefore hold that the use of the term “amount appropriated” encompasses funds derived from federal as well as state sources. As noted above, the total appropriation to DUCA in the 1982-83 General Appropriations Act was $37,352,621.00. The $1,000,000.00 reduction ordered by Executive Order No. DOT 82-23 did not exceed ten percent of the amount appropriated to that budgetary unit. Thus, Executive Order No. DCT 82-23 did not violate the provisions of LSA-R.S. 39:55 and it is therefore valid.

For the foregoing reasons, the judgment of the district court is reversed and judgment is hereby rendered in favor of defendants, Governor David C. Treen and the State of Louisiana, dismissing plaintiffs’ suit at plaintiffs’ cost.

REVERSED AND RENDERED.

APPENDIX

H. B. NO. 350

EXPENDITURE ITEM SOURCE CATEGORY

14-03-00 OFFICE OF EMPLOYMENT SECURITY (1,731)

FOR:

Salaries Continuing $ 33,544,308

Other Compensation 215,308

Related Benefits 4,672,951

Operating Expenses 8,767,796

Professional Services: Accounting & Auditing 650,000

Management Consulting 125,000

Legal 35,000

Other Charges 71,221,662

Acquisitions & Major Repairs 1,093,000

FROM:

Federal Funds $120,325,025

TOTAL $120,325,025

14-04-00 LOUISIANA WORKMEN’S COMPENSATION SECOND INJURY BOARD (5)

FOR:

Salaries Continuing $ 110,986

Other Compensation 1,432

Related Benefits 14.516

Operating Expenses 26.516

Acquisitions & Major Repairs 1,128

FROM:

State General Fund by:

Fees and Self-Generated

Revenues $ 154,578

TOTAL $ 154,578

SCHEDULE 15

DEPARTMENT OF URBAN AND COMMUNITY AFFAIRS

15-01-00 DEPARTMENT OF URBAN AND COMMUNITY AFFAIRS (74)

FOR:

Salaries Continuing $ 1,263,489

Other Compensation 22,945

Related Benefits 166,979

Operating Expenses 528,056

Professional Services: Audit 23,500

Legal Services 1,100

Consultants for Head Start, Child Development, and HUD Programs 46,215

Professional Travel 3,000

Other Charges 35,204,733

Acquisitions and Major Repairs 92,604

FROM:

State General Fund 4,183,645

State General Fund by: Interagency Transfers 2,400,000

Federal Funds 30,768,976

TOTAL $ 37,352,621

vetoed July 20,1982

David C. Treen Of the funds herein appropriated in “Other Charges”, $1,000,000 shall be payable out of the State General Fund for assistance to .the planning and development districts, to be distributed among such districts on the basis of 30% of said funds to be distributed equally among said districts, and 70% of said funds to be distributed on per capita basis.

15-02-00 LOUISIANA HOUSING FINANCE AGENCY (6)

FOR:

Salaries Continuing 123,564 ■e*

Other Compensation 13,500

Related Benefits 17,546

Operating Expenses 81,736

Professional Services: Audits 5,000

Legal Services 20,000

Other Professional Services 15,000

Acquisitions and Major Repairs 23,654

FROM:

State General Fund by:

Fees and Self-Generated

Revenues $ 300,000

TOTAL $ 300,000

15-03-00 GOVERNOR’S COMMISSION ON INDIAN AFFAIRS (3)

FOR:

Salaries Continuing 51,498

Other Compensation 2,200

Related Benefits 6,173

Operating Expenses 15,357

Other Charges $ 60,000

Acquisitions & Major Repairs 1,432

PROM:

State General Fund $ 136,660

TOTAL $ 136,660

SCHEDULE 16

DEPARTMENT OF WILDLIFE AND FISHERIES

16-01-00 OFFICE OF SECRETARY (360)

FOR:

Salaries Continuing $ 6,368,403

Other Compensation 110,747

Related Benefits 919,375

Operating Expenses 4,062,102

Professional Services: Medical Services 1,020

Other Professional Services 5,120

Other Charges 409,920

Acquisitions and Major Repairs 1,938,267

      . Pages 72 and 73. of Act 13 of 1982, which contain the appropriations and veto in question, are set out in the attached Appendix.

      . Defendants contend that the ten percent limitation of LSA-R.S. 39:55 is inapplicable to the instant case. They note that Section 9 of Act 13 of 1982, the General Appropriations Act, contains similar language to LSA-R.S. 39:55, and gives the governor power to prevent deficit spending. They assert that the provisions of Act 13 of 1982 contain no ten percent limitation. That section of the act provides, in pertinent part:
      “In order that the expenditures from appropriations made in the general appropriations act for the remainder of the year will not exceed receipts of the treasury, the Governor may direct that there be across-the-board cuts in total allotments of appropriations for the remainder of the year or for any monthly or quarterly period of the fiscal year, or he shall have authority to issue Executive Orders in the form of freeze orders prohibiting the expenditure of funds for specified items or purposes, or the Governor may issue Executive Orders in a combination of any of the foregoing means of preventing the occurrence of a cash deficit in the State Treasury and as provided in R.S. 39:55.”
      The language “as provided in R.S. 39:55” clearly makes the provisions of that statute, including the ten percent limitation, applicable to the powers granted to the governor by Act 13 of 1982. We also note that the executive order in question states that the governor was acting under the authority granted him by LSA-R.S. 39:55.

      . The DUCA appropriation was funded from the following sources:
      State General Fund $ 4,183,645
      State General Fund by: Interagency Transfers 2,400,000
      Federal Funds 30,768,976
      The trial court did not determine whether the ten percent limitation should be calculated solely upon the sum derived from the state General Fund or upon that sum plus the money received from interagency transfers. The court noted that the $1,000,000.00 sum exceeded ten percent of either figure.

      . Executive Order No. DCT 82-21 earlier ordered a 4.4 percent reduction in the amount of General Fund appropriations for all budgetary units. That reduction, added to the instant $1,000,000.00 reduction still does not exceed the ten percent limitation imposed by LSA-R.S. 39:55.


author: GAUDIN, Judge. GRISBAUM, Judge,

text:
    Joseph SCIORTINO, Jr. v. Thomas L. ALFANO, Jr., et al.
    No. 5-297.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 1983.
    Writ Denied Sept. 16,1983.

      Garland R. Rolling, Metairie, for plaintiff-appellee.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Jesse J. Marks, Harry H. Howard, Asst. Attys. Gen., New Orleans, for appellant-State of Louisiana.
    Joseph F. Grefer, Gretna, for appellant-Thomas L. Alfano, Jr.
    A.W. Wambsgans, Metairie, for appellants-Alwynn J. Cronvich, Sheriff; North River Ins. Co.; Inti. Surplus Lines Ins. Co.; The Sheriffs’ Assoc. State of La.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   GAUDIN, Judge.

This tort action was instituted in the 24th Judicial District Court by Joseph Sciortino, Jr., who alleged that he received severe personal injuries as the result of being assaulted by an off-duty Jefferson Parish police officer, Thomas Alfano, Jr.

The trial judge rendered judgment in Sciortino’s favor in the sum of $40,000.00. Cast in judgment jointly, severally and in solido were (1) Alfano personally and as a deputy sheriff; (2) the Sheriff of Jefferson Parish, Alwynn J. Cronvich; (3) North River Insurance Company, the Sheriff’s insurer; (4) International Surplus Lines Insurance Company, another insurer of the Sheriff’s Department; (5) the Sheriff’s Association and (6) the State of Louisiana.

The judgment’s actual wording is not clear with regard to the State, but the assigned “Reasons for Judgment” clearly indicate that the trial judge meant to include it among the defendants indebted to Sciortino. We will, therefore, treat the State as having been named along with Alfano and the others.

The judgment further limited the Sheriff’s liability in accord with LSA-R.S. 33:1433, and dismissed Sciortino’s claims against the Parish of Jefferson and Cron-vich personally.

All defendants placed in judgment have appealed, while Sciortino is also before this Court asking for an increase in damages. Sciortino did not appeal from the ruling in favor of the Parish of Jefferson and Cron-vich personally.

On review, we affirm the $40,000.00 judgment against all named defendants except the Sheriff’s Association and the State of Louisiana. Sciortino’s claims against the Sheriff’s Association and the State are dismissed.

FINDINGS OF FACT

On October 20, 1977, Alfano was employed as a desk sergeant by the Sheriff’s Office while Sciortino was a salesman at Levitz Furniture Company.

Alfano, in civilian clothes and not on official duty, went to the furniture store and located Sciortino. They then went into a small office.

Sciortino and Alfano gave conflicting testimony about what occurred next, and the trial judge made these findings:

“Defendant went to Levitz Furniture Company and sought out Sciortino since plaintiff had been the salesman who had the dealings with his wife. After entering the premises, defendant, Alfano, came into the employee lounge and asked plaintiff to step outside to discuss something. Defendant, Alfano, suggested to plaintiff that they seek a vacant office to talk in private and told plaintiff that plaintiff owed him Eighty-Five ($85.00) Dollars and he intended to collect it. “Sciortino then told Alfano that he was going to get the manager and Alfano said ‘you’re not going anywhere’ and showed plaintiff his Jefferson Parish Deputy Sheriff commission and told plaintiff to show him his driver’s license.
When Alfano started to use the telephone, Sciortino attempted to leave the room and was grabbed on the arm by defendant, Alfano, who forcibly hurled him against a refrigerator in the room and into a chair also located there, causing injury to the back of Sciortino. Alfano was thirty-two (32) years old at the time and was much younger and larger than Sciortino who was fifty-two (52) years old on the date in question.
“Earl Brown, an employee of Levitz, came into the room and Alfano told him that plaintiff had stolen money and was going to jail.
“Another employee of Levitz, Dale Atkins, also came into the room and Alfano asked him to show defendant his driver’s license. Alfano was preparing to use the telephone again when Atkins advised him that he could not use the telephone but Alfano said he was commandeering the telephone anyway. Further, defendant advised Atkins that he would arrest him if he interfered.
“Defendant called his District Headquarters from Levitz. Defendant’s supervisor, Sgt. Joe Torres, was dispatched to the scene. On arriving at the scene, Al-fano told Torres that he was a victim of theft by fraud. Torres never saw plaintiff but was handed Sciortino’s driver’s license. Sgt. Torres determined the matter to be civil in nature and not a criminal one because he felt there was a serious lack of intent to deprive one of his belongings as required by LSA-R.S. 14:67. Torres further said the manager of Levitz attempted to make a complaint about defendant arresting his employees, but stated that defendant never indicated to him that he had arrested anyone.”

After making these findings, the district judge concluded that while Alfano had gone to Levitz on a personal mission, he “... began acting in the course and scope of his employment as a deputy sheriff at the moment he began attempting to make a record check on plaintiff and detained plaintiff. ... it was at this point in time that the civil encounter became an investigatory stop by a deputy...”

We cannot say that these determinations were clearly erroneous or that they lacked a factual basis, and we will not disturb them. See Canter v. Koehring Co., 283 So.2d 716 (La.1973); also, Arceneaux v. Domingae, 365 So.2d 1330 (La.1978), in which the court, clarifying Canter, stated:

“... the appellate court should not disturb factual finding in the absence of manifest error.”

SCIORTINO’S INJURIES

It is difficult for us, as it must have been for the trial judge, to fairly assess Sciorti-no’s damages as he had several prior injuries to his back and was classified as twenty (20) percent disabled by the Veteran’s Administration. The testimony of Dr. Melville Sternberg, an internist and one of the treating physicians, indicated that Sciortino was hurt as a result of this incident. He was twice hospitalized, his personality and attitude toward his work changed and he ultimately became unable to sustain his employment.

In addition to Dr. Sternberg, a number of other physicians expressed opinions, either via personal appearances at the trial or by having their depositions or statements stipulated into evidence.

Dr. R.C. Llewellyn, a neurosurgeon, said that Sciortino’s lower back spasms were correlated to his complaints.

Dr. Masco Wakabayashi, a radiologist, said that Sciortino did have, a disc problem and nerve root irritation.

In addition to physical complaints, Scior-tino had emotional troubles. Dr. Eugene Dabezies, an orthopedist, said that while Sciortino had a sprain, “... there was considerable emotional overlay which seemed to be coloring the clinical picture.”

Two psychiatrists, Drs. Gene Usdin and Edward Norman, testified. Dr. Usdin stated that Seiortino’s pain and limitation of movement could have a psychogenic basis but he could not rule out the possibility of organic dysfunction, while Dr. Norman said that Sciortino had experienced an emotional reaction caused by trauma.

Dr. John D. Jackson, a neurological surgeon, said in his report:

“... after studying this patient and reviewing his x-rays I must state that I am unable to find any objective evidence of lumbar disc disease or injury or neurological dysfunction. At the time this patient was seen on 4/18/78 he advised me that he was planning to return to work on 4/22/78 on a part time basis to see if he could perform the work satisfactorily. I have not heard whether he was able to do this but I have every hope after examining him and studying his x-rays that he will be able to get back to work without any great difficulty. In my opinion this has been more of an emotional psychological illness than actual organic illness.”

Sciortino attempted to show that all of his present physical and emotional problems were related to the sued-on incident and not to preexisting events, but obviously the trial judge was not fully convinced. Nonetheless, the tortfeasor takes his victim as he finds him, and is responsible for injuries superimposed on existing physical and emotional conditions.

Only if the trial court has clearly abused its discretion should an award be raised or lowered. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), and Reck v. Stevens, 373 So.2d 498 (La.1979).

Considering all of the medical testimony and evidence, we believe that the trial court could have awarded either a greater or lesser sum, but we cannot say that the award of $40,000.00 was in abuse of the wide discretion given the trier of fact.

DEFENDANTS CAST IN JUDGMENT

As Alfano did act within the bounds of his employment, he was correctly named in the judgment. The same is true with regard to the Sheriff, although his exposure is restricted by R.S. 33:1433 to the amount of the deputy’s bond, as noted by the trial judge in his judgment.

However, the judgment did not restrict the liability of the two insurance companies; and on appeal, neither North River Insurance Company nor International Surplus Lines Insurance Company contended that its financial responsibility should be limited by either a statute or by the terms and conditions of its policy of insurance. The insurance companies argued only that the trial judge erroneously found that Alfa-no was acting as a police officer, and in this endeavor they did not prevail.

With regard to the Sheriff’s Association, the record does not contain an answer filed by this defendant, nor does the record show that a preliminary default was ever entered. As the Sheriff’s Association was not before the court, it could not be placed in judgment. Sciortino admitted this in his appellate brief.

Also inadvertently cast in judgment was the State of Louisiana. In Jenkins v. Jefferson Parish Sheriffs Office, 402 So.2d 669 (La.1981), the Supreme Court of Louisiana stated:

“No one but the sheriff can realistically be viewed as the employer of deputies.”

Further,

“We conclude that the sheriff is the appropriate governmental entity on which to place responsibility for the torts of a deputy sheriff.”

The State of Louisiana, therefore, cannot be held responsible for a deputy’s tortious conduct.

at injury, the holding in Foster v. Hampton, 352 So.2d 197 (La.1977), was in effect and that deputies were considered employees of the State. However, the State was not a party defendant in this case, and the wording dealing with the State was dicta.

Later, Foster added the State as a party defendant, and this led to the second Foster decision, Foster v. Hampton, 381 So.2d 789 (La.1980). The Supreme court here dealt with prescription, concluding that Foster’s original suit against the sheriff and other defendants did interrupt prescription against the State.

The second Foster case did not positively say that the State was liable, only that the State’s preemptory exception was invalid and that it should defend against Foster’s demands along with other defendants.

The Jenkins decree, we believe, placed the connection between a deputy sheriff and the State of Louisiana in proper prospective. The State, which neither hires deputies nor exercises any control whatsoever over them, can’t reasonably be held liable for torts of a locally-employed parish deputy, the doctrine of respondeat superior notwithstanding.

CONCLUSION

For the foregoing reasons, we affirm the judgment in favor of Joseph Sciortino, Jr. and against (1) Thomas L. Alfano, Jr., individually and as a deputy sheriff, (2) Alwynn J. Cronvich, as Sheriff of Jefferson Parish, (3) North River Insurance Company and (4) International Surplus Lines Insurance Company, jointly, severally and solidarily, in the sum of $40,000.00, with legal interest from date of judicial demand, until paid, and all costs. The liability of Cronvich, as Sheriff of Jefferson Parish, is limited to the amount of the bond posted by Alfano.

We void and set aside the judgment against the Sheriff’s Association and the State of Louisiana, and we render judgment in favor of these defendants and against Alfano, dismissing his demands with prejudice and at his cost.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

GRISBAUM, J., concurs.

GRISBAUM, Judge,

concurring.

I concur in the result reached by the majority.

      . See Perniciaro v. Brinch, 384 So.2d 392 (La. 1980), and numerous other cases.


author: CARTER, Judge:

text:
    STATE of Louisiana v. Augustus JACOBS and Percy Jacobs.
    No. 82 KA 1046.
    Court of Appeal of Louisiana, First Circuit.
    May 17, 1983.
    On Rehearing Aug. 23, 1983.

      Ossie Brown, Dist. Atty. by Robert Hester, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Bonnie Jackson, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, COLE and CARTER^ JJ.
   CARTER, Judge:

Appellants, Augustas Jacobs and his brother, Percy Jacobs, were jointly charged by bill of information with the crime of simple burglary of an inhabited dwelling in violation of LSA-R.S. 14:62.2. They were tried before a twelve person jury, which unanimously found both defendants guilty of simple burglary.

Percy Jacobs was sentenced to three years at hard labor, which sentence was suspended, and defendant was placed on active supervised probation for a period of five years with a special condition that he serve one year in the East Baton Rouge Parish Prison. Augustus Jacobs was originally sentenced to three years at hard labor. Subsequently, in a separate proceeding, the state filed a bill of information charging Augustus Jacobs as a habitual offender because of a prior felony theft conviction. Thereafter, Augustus Jacobs admitted the allegations of the bill and waived his right to a hearing. Defendant was then sentenced to serve three years at hard labor on the simple burglary charge and was sentenced to eight years at hard labor as a habitual offender. The trial court directed that the eight year sentence be consecutive to the three year sentence.

Augustus Jacobs is before this court with two assignments of error:

(1) That the trial court improperly denied the defense counsel’s motion for a new trial; and
(2) That the trial court imposed an excessive sentence.

Percy Jacobs is before this court with one assignment of error:

(1) That the trial court improperly denied his motion for a new trial.

SPECIFICATION OF ERROR — SUFFICIENCY OF THE EVIDENCE

Defendants contend that the trial court erred in not granting a new trial, asserting that no proof was offered by the prosecution to convince a rational trier of fact that all the elements of simple burglary had been met; and, since there was insufficient evidence to support the conviction, a judgment of acquittal should be entered.

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 viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Louisiana Supreme Court has indicated that this appellate review of the evidence by State court is required by the due process clause of the 14th Amendment of the United States Constitution. State v. Graham, 422 So.2d 123 (La. 1982).

When reviewing a conviction based upon circumstantial evidence, it must be determined that viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence has been excluded. LSA-R.S. 15:438; State v. Ennis, 414 So.2d 661 (La.1982); State v. Austin, 399 So.2d 158 (La.1981).

In State v. Ricks, 428 So.2d 794 (1983), Justice Watson summarized the applicable law as follows:

“In reviewing a conviction where proof of an element of the offense is based on an inference from circumstantial evidence, the court must consider two standards: that of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); and LSA-R.S. 15:438. State v. Graham, 422 So.2d 123 (La.1982). Under the Jackson standard, the court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational juror could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. LSA-R.S. 15:438 provides that in order to support a conviction, circumstantial evidence must exclude every reasonable hypothesis but guilt. ..”

Although these defendants were charged with the crime of simple burglary of an inhabited dwelling, they were convicted of a lesser included offense, viz., simple burglary, as defined in LSA-R.S. 14:62.

Therefore, the elements to be proved by the state are (1) unauthorized entry into the dwelling in question; and (2) that defendants had the requisite specific intent to commit a theft or felony therein. See State v. Tennant, 352 So.2d 629 (La.1977), cert. denied, 435 U.S. 945, 98 S.Ct. 1529, 55 L.Ed.2d 543.

Appellants contend that the state failed to prove both (1) unauthorized entry and (2) specific intent to commit a theft or felony.

A. Unauthorized entry

Appellants contend that the state failed to prove that they had broken into or entered into the building in an unauthorized manner.

Mrs. Edwina Vicks, the lawful occupant of the residence, testified that she had been renting the house for approximately two months prior to the incident. She testified that due to the illness of her mother, she had not had time to fix up the place and move into it completely. She stated, however, that she had moved a considerable amount of her goods and furnishings into the house, including a stereo system, clock radio, tables, beds and various items in boxes. She denied knowing or seeing either of the defendants prior to this incident, and that they did not have her permission to be in the residence. Mrs. Vicks was adamant in her testimony that the doors to the residence had been left locked and that she checked them every time she left the residence.

Officer Teddy Wilson testified that an anonymous call was received at approximately 10:00 p.m. that a burglary was in progress at a residence located at 249 Brice Street, Baton Rouge, Louisiana. Officer Wilson and Officer McMillan proceeded to the location and noticed there were no electrical lights on, but did observe a light from a flashlight. They heard someone in the house shout to someone else in the house. The outside of the house was secured, and a K-9 officer was called. The K-9 officer and dog arrived on the scene shortly thereafter. The officers observed that the back screen door had been broken and the wood door was open. Upon entering the house, the officers observed Augustus Jacobs hiding under the dining room table and later found Percy Jacobs hiding under a bed in the bedroom, with a chisel and screwdriver next to him.

From the above, it is obvious that the evidence is clear, convincing and overwhelming that both defendants made unauthorized entry into the dwelling in question.

B. Specific Intent to commit a theft or felony

Defendants argue that evidence of “specific intent to commit a theft or felony therein” as offered by the prosecution was insufficient because Percy Jacob’s testimony indicated that he was just hiding out from the police in the residence and that Augustus Jacobs was there in the capacity of bringing him food. Percy Jacobs stated that he found the doors to the house open and that he had been living in the house for approximately three days prior to being arrested. He testified that Augustus Jacobs had just come in the residence to bring him food. Percy Jacobs further testified that he was hiding out because he had been informed that the police were looking for him for a “burglary”. He denied knowing anything about the screwdriver and chisel found under the bed next to him and further denied that he had broken into the house contending he had no intent to commit a theft or felony. He further testified that Mrs. Vicks was lying when she testified that the doors were locked, testifying:

“Q. Now, you know you didn’t — now, you’re saying you didn’t move those things?
A. I didn’t move them.
Q. Did not?
A. Did not move anything.
Q. So she’s not telling the truth if she says that those things were moved in that period of time? You know any reason she has to lie on the stand?
A. I wouldn’t know.
Q. Would you lie to keep from going to jail?
A. Yeah, I would.
Q. And you are. Thank you.”

The defense offered absolutely no evidence to corroborate Percy Jacob’s testimony.

The state established that the weather conditions were such that it was highly unlikely that a person would have been inhabiting this residence without any source, of heat and protection from the weather other than a sheet on the bed in the bedroom. The state further offered evidence that the items belonging to Mrs. Vicks in the residence were in considerable disarray and in locations different from where Mrs. Vicks had left same. Although nothing was missing from the residence, the state contends that the defendants had not yet completed the theft before their presence was detected. The apprehension and arrest by police officers stopped the consummation of the theft by the intruders.

In State v. Dickerson, 353 So.2d 262 (La. 1977), overruled on other grounds in State v. Cox, 369 So.2d 118 (La.1979), the Louisiana Supreme Court, discussing specific intent relative to a burglary prosecution, determined that intent, being subjective in character, need not be proven as a fact in a burglary prosecution and may be inferred from circumstances of the transaction. LSA-R.S. 14:62; LSA-R.S. 15:445; see also, State v. Moore, 302 So.2d 284 (La. 1974); State v. Kado, 300 So.2d 461 (La. 1974).

LSA-R.S. 14:10, in pertinent part, defines specific criminal intent as:

“... [Tjhat state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act... ”

Specific criminal intent to commit a felony or theft may be inferred from the circumstances. LSA-R.S. 14:10; LSA-R.S. 15:445; State v. Ricks, supra. However, there must be some evidence that the defendant actively desired to commit a felony or theft.

In State v. Jones, 426 So.2d 1323 (La.1983), a conviction of attempted simple burglary was reversed because the state failed to prove the defendant had the requisite intent to commit a felony or theft. In that case, the defendant was discovered in a neighbor’s home, but without burglary tools or other evidence that he intended to commit a felony or theft. The defendant explained his presence by saying he went there to seek transportation to obtain medical assistance. The Supreme Court held that mere presence in the house did not support an inference of intent to commit a felony or theft.

The facts of Jones, however, are clearly distinguishable from the present case. The totality of the circumstances presented, in this case, as well as ■ defendants lack of employment, past records, possession of tools customarily used for break-in, the impeached credibility of the defendant who testified, when considered in totality, clearly provides a reasonable basis for the jury’s findings of intent on the part of defendants to commit a theft or felony.

Appellants urge that the instant case is similar to State v. Marcello, 385 So.2d 244 (La.1980). The facts in the instant case, however, are clearly distinguishable from those presented in State v. Marcello, supra. In Marcello, the defendant was apprehended in a public building and had a history of this type of activity, including sleeping in public buildings. The defendant was discovered in the hallway of the office building. He explained that he entered the building through the roof where he had been sleeping, to wash up in a restroom. The defendant stated that he had left the restroom in search of an easier exit when he was discovered. It was established that there was evidence of his having washed up in the restroom from the dirt, debris, etc. found in the restroom. His presence and subsequent flight, without possession of burglary tools or stolen property, was insufficient to establish that he intended to commit a felony or theft. The facts surrounding Marcello’s presence in the NOPSI building were fully supported by his version of the incident. No tools of the type used to gain unauthorized entrance to a building were recovered. In the instant case, tools (chisel and screwdriver) customarily used to gain unauthorized entry into a building were found “next to Percy Jacobs when he was apprehended under the bed.” Further, Percy Jacobs’s testimony was contradicted by other competent witnesses and evidence as concerns other elements of the case.

When there is conflicting testimony as to a factual matter, the question of credibility of witnesses is within the sound discretion of the trier of fact. State v. Klar, 400 So.2d 610 (La.1981). Further, an appellate court will not reweigh credibility of witnesses under the Jackson v. Virginia standard. State v. Richardson, 425 So.2d 1228 (La.1983). Therefore, viewing the evidence in the light most favorable to the prosecution, any rational juror could conclude that the state proved the essential elements of the crime beyond a reasonable doubt and that the totality of the circumstantial evidence in the instant case excluded every reasonable hypothesis but guilt.

The situation presented in the instant case is likened to State v. Pike, 426 So.2d 1329 (La.1983), where a conviction of simple burglary of an inhabited dwelling was affirmed. In Pike, entrance was gained through a locked kitchen window; defendant, a neighbor, was discovered hiding in the bedroom closet at 2:30 a.m.; a jewelry box had been tampered with; and a ring was missing. These facts were sufficient to prove that the defendant had the intent to commit a theft.

Like the defendant in Pike, supra, one of the defendants in the instant case was found with tools that could certainly be considered burglary tools beside him under the bed. The trial jury apparently found the testimony of Mrs. Vicks and the police officers credible, and that of Percy Jacobs not credible. It was established that defendant gained entrance through a locked door. The defendants were discovered hiding in the dwelling, items belonging to Mrs. Vicks had been tampered with, and defendant’s own testimony established that he had been involved in or that the police were looking for him “for another burglary.” The totality of these circumstances is clearly sufficient to support the jury’s finding that these defendants made an unauthorized entry into another’s dwelling with the specific intent to commit a theft. This assignment of error is clearly without merit.

SPECIFICATION OF ERROR — SEVERITY OF SENTENCE

Defendant, Augustus Jacobs, contends that the sentence imposed of three years at hard labor resulting from the simple burglary conviction and an additional consecutive sentence of eight years at hard labor as a second habitual offender constitutes an excessive sentence.

Although defendant makes no assignment of error as to the legality of the sentence, our review of the sentencing of the trial court leads us to conclude that there is present within this sentence an error patent which requires our consideration notwithstanding the absence of an assignment of error; that is, the trial court’s imposition of two separate sentences on this defendant.

Under State v. Walker, 416 So.2d 534 (La.1982), the sentence is improper. According to the rationale of State v. Walker, supra, sentencing as a multiple offender under LSA-R.S. 15:529.1 is the enhancement of the penalty for habitual offenders convicted of a new felony and only addresses itself to the sentencing powers of the trial judge after conviction, and has no functional relationship to the innocence or guilt of the instant crime. See State v. Stott, 395 So.2d 714 (La.1981); State v. Walker, supra. In other words, a sentence imposed in such a case is for the new crime only; it is simply more severe if the defendant is a habitual offender. State v. Stott, supra. In the instant case, by imposing a sentence of three years for the crime committed and adding another sentence of eight years as a result of the habitual offender adjudication, the trial judge imposed one sentence of the “new crime” (simple burglary) and an additional sentence resulting from the habitual offender adjudication. This was improper; defendant should have been sentenced only once as a multiple offender on the underlying charge of simple burglary. State v. Walker, supra; Cf. State v. Bell, 404 So.2d 974 (La.1981).

Since article 882 of the Louisiana Code of Criminal Procedure provides than an illegal sentence may be corrected at any time by the court that imposed sentence, it is necessary to remand the case to the trial court for the imposition of a valid sentence. Since the sentences in the instant case as concerns Augustus Jacobs are illegal sentences, it is inappropriate and impractical at this time to review these sentences for ex-cessiveness as defendant, Augustus Jacobs, will obviously have to be re-sentenced.

Considering the above, the conviction and sentence of Percy Jacobs are affirmed. The conviction of Augustus Jacobs is affirmed, but the sentences imposed are vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence the defendant in accordance with law. Augustus Jacobs is herein remanded to the trial court for sentencing in accordance with law.

AS TO DEFENDANT, PERCY JACOBS, CONVICTION AND SENTENCE ARE AFFIRMED.

AS TO DEFENDANT, AUGUSTUS JACOBS, CONVICTION AFFIRMED, SENTENCE VACATED AND REMANDED FOR RE-SENTENCING.

ON REHEARING

This application for a rehearing filed on behalf of the State was granted for the purpose of reviewing the sentence imposed on defendant Augustus Jacobs. We vacate our prior ruling and affirm defendant’s sentence.

Defendant Augustus Jacobs committed two burglaries during December 1981. The defendant was charged under bill number 2-82-330 with burglary of an inhabited dwelling which occurred on December 14th and under bill number 1-82-792 with burglary of an inhabited dwelling which occurred on December 18th. Defendant pled not guilty to bill number 1-82-792, was tried, and was found guilty of simple burglary; defendant then pled guilty to bill number 2-82-330.

Thereafter, defendant was adjudicated a second habitual offender under bill number 10-82-141. The determination was based on a 1976 conviction and the guilty plea to burglary of an inhabited dwelling under bill number 2-82-330.

On October 26, 1982, the defendant was sentenced as follows:

(1) On bill number 1-82-792, the conviction for simple burglary, a three year sentence was imposed;
(2) On bill number 10-82-141, the habitual offender bill based on the 1976 conviction and the 1982 guilty plea to burglary of an inhabited dwelling, an eight year sentence was imposed.

Defendant appealed alleging that the trial court improperly denied the defense counsel’s motion for a new trial and that the trial court imposed an excessive sentence. This court found no merit in the first specification of error, but vacated the sentence and remanded the case for resen-tencing due to what appeared to be a patent error in the sentence imposed. From the record, it appeared that both the three year sentence and the eight year second offender sentence were based on the same simple burglary conviction. Since this procedure would constitute an illegal sentence, we ordered the sentence vacated and remanded for resentencing.

Based on the facts as set forth above, we now conclude that the sentencing procedure originally followed by the district court was proper. Although the sentences were imposed in a single sentencing hearing, it is clear that there were two burglary convictions, one giving rise to the three year sentence and one giving rise to the eight year sentence as a habitual offender. Therefore, our prior ruling to remand is vacated.

In his appeal, defendant argues that the sentence imposed was excessive. The only bill appealed to this court was number 1-82-792, and therefore, the only sentence which is before us for review is the three year sentence.

Defendant specifically argues that the sentence imposed constitutes “cruel, excessive or unusual punishment” in violation of La.Const., Art. 1 § 20. Defendant urges that the sentence is excessive for the following reasons: (1) there was no evidence that defendant’s behavior caused or threatened to cause any type of serious harm; (2) the pre-sentence investigation revealed that defendant was trying to lead a law-abiding life; and, (3) the term of imprisonment imposed for the simple burglary conviction is to run consecutively to that imposed on the habitual offender petition, and that as a result, the defendant will be imprisoned for eleven years.

The applicable law is found in State v. Willis, 420 So.2d 962 (La.1982), in which the court states:

“Louisiana Constitution of 1974, Art. 1, Sec. 20, prohibits the imposition of excessive punishment. Accordingly, this court has held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is reviewable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.C.Cr.P. art. 894.1, are an important aid to this Court when called upon to exercise its constitutional function to review a sentence complained of as excessive. Moreover, the trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of his discretion. This court has held a sentence is excessive if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering.” (Citations omitted) 420 So.2d 964, 965.

Defendant was convicted of simple burglary and sentenced under LSA-R.S. 14:62 which provides in part:

“Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.”

In this instance the trial judge imposed a three year sentence. In sentencing the defendant, the trial judge specifically referred to defendant’s prior record, which included a previously imposed probated sentence, which probated sentence was revoked the following year after another felony conviction. The trial judge also stated that, because of defendant’s history, a lesser sentence would deprecate the seriousness of the crime. Further, the trial judge’s sentencing of defendant as a habitual offender on the same date indicates that the court was justly concerned that future criminal conduct might result if a lesser or probated sentence were imposed.

By setting forth the sentencing considerations and the factual basis therefor, the trial judge has more than adequately complied with the sentencing guidelines expressed in LSA-C.Cr.P. art. 894.1. Therefore, a review of the sentence on appeal should focus on whether the trial judge has abused the discretion afforded him in sentencing. State v. Willis, supra; State v. McDonald, 414 So.2d 735 (La.1982).

We find that the trial judge sufficiently stated the factual basis and that the three year sentence imposed herein is well within the discretion of the trial court. For the above and foregoing reasons, the sentence is affirmed.

AFFIRMED.

      . Verdicts responsive to simple burglary of an inhabited dwelling:
      (a) Guilty,
      (b) Guilty of attempted simple burglary of an
      inhabited dwelling,
      (c) Guilty of simple burglary,
      (d) Guilty of attempted simple burglary,
      (e) Not guilty.

      . Other special conditions of probation were also imposed.

      . Bill of Information No. 10-82-141 charges Augustus Jacobs with having been convicted in prosecution 4-2-76-759 of the 19th Judicial District Court of the offense of felony theft on April 28, 1976. However, counsel for appellant in brief states:
      “The pre-sentence investigation revealed that Augustus Jacobs did not have a juvenile record and had been convicted of only two felonies.”

      .We are required to abide by this interpretation although we are not in agreement with this for reasons previously set forth in our Specially Concurring opinion in State v. Oliney, 430 So.2d 1294 (La.App.1983).

      . LSA-R.S. 14:62 provides as follows:
      “Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Section 60.
      “Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.”

      . Officer Wilson’s testimony was corroborated by Officers’ McMillan, David and Rose.

      . In all fairness to the trial court, it should be stated that State v. Walker, supra was decided at approximately the same time as the sentencing in the instant case. Apparently, the decision in State v. Walker was not available to the trial judge at the time of the sentencing in this case.

      . Once the defendant has been re-sentenced, we will be required to review the sentence for excessiveness if an appeal is perfected alleging excessiveness of the new sentence even though we are not in agreement with this interpretation of Article I, Section 20 of the Louisiana Constitution of 1974. Cf. Specially Concurring opinion in State v. Lewis, 430 So.2d 1286 (La. App.1983).