author: CAMPBELL, Judge.

text:
    ALPHA ELECTRIC SUPPLY, INC., a Florida corporation, Appellant/Cross-appellee, v. G.E. LEE ENTERPRISES, INC., formerly known as G.E. Lee Electrical Enterprises, Inc., a Florida corporation; Gordon E. Lee and Rosemary Lee, as Trustees of G.E. Lee Electric Contracting & Appliances, Inc., a dissolved Florida corporation; G.E. Lee, also known as Gordon E. Lee; Rosemary Lee, also known as Rosmary Lee and Rosmary S. Lee; Eric Richards; Ronald R. Richards; Hammock Bros. Roofing Company, Inc., a dissolved Florida corporation; the State of Florida; The Diners’ Club, Inc., a foreign corporation qualified to do business in the State of Florida; and J.B. Ivey & Company, a North Carolina corporation qualified to do business in the State of Florida, Appellees/Cross-appellants.
    No. 82-1645.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1983.

      Charles L. Steinberg, Orlando, for appellant/cross-appellee.
    Loyd C. Mosley of Mosley & Evans, P.A., Clearwater, for appellees/cross-appellants G.E. Lee Enterprises, Inc., and Gordon E. Lee and Rosemary Lee.
    Mark R. Lewis and John G. Thompson, St. Petersburg, for appellees/cross-appel-lants Eric Richards and Ronald R. Richards.
    Jeffrey P. Kielbasa, Asst. Atty. Gen., West Palm Beach, for appellee/cross-appel-lant State of Florida.
    N. Alfred Winn, St. Petersburg, for ap-pellee/cross-appellant The Diners’ Club, Inc.
    Lehn E. Abrams, Orlando, for appel-lee/cross-appellant J.B. Ivey & Co.
   CAMPBELL, Judge.

This appeal stems from a complaint below wherein the appellant/cross-appellee, Alpha Electric Supply, Inc., sued appellees on an alleged open-account indebtedness of G.E. Enterprises, Inc., and the personal guarantees of its stockholders, Gordon and Rosemary Lee, appellees/cross-appellants here.

Appellant raises two points on appeal. Those points are whether the trial court erred in granting appellees’ motion for new trial, and whether the court further erred in construing appellees’ limited liability on their personal guarantee so as to deny prejudgment interest and costs. We find merit in both points raised by appellant. Ap-pellees Lee raise one point on cross-appeal which we find has no merit.

First, while recognizing the great weight to be given to the granting of a new trial by a trial judge, we believe that appel-lees’ motion below should not have been granted. We do not here have to consider the principles set forth in Cloud v. Fallis, 107 So.2d 264 (Fla. 2d DCA 1958), for the trial judge below granted the motion for new trial not on the basis of the manifest weight of the evidence, but on what he considered an inconsistency in the verdict. The ease was submitted to the jury on the basis of a special verdict which consisted of sixteen separate questions to be answered by them. The trial court considered the answer to question four as being contradictory to the answers to the other questions on the special verdict. We feel that this was an abuse of discretion. We find that at least one interpretation of the answer to question four would be entirely compatible with the answers to the other questions. However, even if this were not true, the answer to question four would not be so contradictory as to contravene the clear import of the answers to the other fifteen questions. We, therefore, reverse the trial court’s holding granting appellees’ motion for new trial.

Secondly, the trial court held that appellant would not be entitled to either costs or prejudgment interest from the date of the demand on appellees for payment under their personal guarantees, because to award costs and interest would cause the judgment to exceed the limit of their guarantees. This is contrary to the holding of our supreme court in American Surety Co. of New York v. Gedney, 136 Fla. 10, 185 So. 844 (Fla.1939), and this court, Hughes v. Irons, 370 So.2d 76 (Fla. 2d DCA 1979). Appellees’ personal guarantees here were limited to a liability not to exceed $30,000. To impose costs and prejudgment interest would cause their liability to exceed that figure. In American Surety Co. of New York, the court held that although a surety’s liability is limited to the penal amount of a bond, interest on that penal amount may be collected from the time it became the surety’s duty to pay, even though the total sum the surety must pay will then exceed the penal sum named in the bond. In Hughes, this court held that prejudgment interest, computed from the date the debt is found to be due, is allowable when a claim is liquidated. Therefore, on appellant’s appeal, we reverse the holding of the trial court and direct that the verdict should be reinstated and judgment should be entered accordingly to include costs and prejudgment interest from the date of demand, which the record indicates as November 21, 1979.

On the cross-appeal filed by appellees Lee, we affirm the trial judge’s denial of appellees’ motions for directed verdict, requested jury instruction, counterclaim and contentions of usury.

Reversed on appeal and affirmed on cross-appeal and remanded for compliance herewith.

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


source: Caselaw Access Project

author: BOARDMAN, Acting Chief Judge.

license: Public Domain

text:
    Claude Robert WEBB, Appellant, v. STATE of Florida, Appellee.
    No. 82-2294.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1983.

      Stephen B. Rakusin of Stephen B. Raku-sin, P.A., Gainesville, and Robert G. Leeds, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant Claude Robert Webb contends that the evidence presented during his non-jury trial was legally insufficient to convict him of second degree grand theft under section 812.014, Florida Statutes (1981). We agree and reverse.

The information filed against appellant charged him with knowingly and unlawfully obtaining, using, or endeavoring to obtain or to use “United States currency in excess of $100.00,” with the intent to deprive Richard T. Doyle of a right to or benefit from this property. The information further specified that “while in the process of completing a second-floor addition to the residence of Richard T. Doyle, [appellant] had materials billed to the Doyle construction job which were not used on the Doyle construction job.”

The alleged discrepancy between the materials utilized in the Doyle project and those “billed” to Mr. Doyle came to light when a supplier filed a mechanic’s lien against the Doyle residence for three hundred thirty-six board feet of cedar supplied to appellant “for use” on the Doyle property. Only ninety-six feet of this cedar was actually incorporated into the Doyle addition or otherwise accounted for at the site. Thus, according to the state, appellant committed the offense of grand theft by endeavoring to force Mr. Doyle to pay— through discharge of a mechanic’s lien — for materials “billed” to Doyle but not incorporated into his home.

The evidence presented at trial established that appellant, a general contractor, and his construction company, ARC Construction, Inc., entered into a written contract with Richard Doyle to perform certain improvements to Doyle’s home for a flat fee of $43,180. During the course of this work, appellant purchased three hundred thirty-six board feet of cedar (comprised of twenty-four, 1 X 12 X 14 boards) from the supplier, Florida Forest Products, Inc. The invoice documenting this sale indicated that the cedar had been sold to “Claude R. Webb & ARC Const. Inc.” and “received in good order by R. Webb.” A portion of the invoice designated for shipping directions contained the notation “ARC, Doyle job.”

According to a trim carpenter employed by ARC, appellant later delivered approximately one-half of twenty-four cedar boards loaded in his truck to the Doyle site, informing the carpenter that the balance was for another job. When appellant subsequently failed to pay for the cedar, purportedly because Doyle’s previous $25,000 total payments had been depleted in bringing the project to eighty-five per cent completion and Doyle had not remitted further installments, Florida Forest Products, Inc., filed a mechanic’s lien against the homeowner’s property. Doyle precluded appellant from finishing the project; this criminal charge ensued; and appellant ultimately was convicted and sentenced to three hundred sixty-four days imprisonment, followed by three years probation.

As section 812.014(1) and (2)(b)l, Florida Statutes (1981), makes clear, the state must establish that the accused knowingly obtained, used, or endeavored to obtain or to use property of another, valued in excess of $100, with the intent to deprive the lawful owner of the property or to appropriate it to the use of someone not entitled thereto. The evidence presented at appellant’s trial was simply insufficient to establish the crime of second degree grand theft.

Conversely, we conclude from a review of the record that appellant was tried and convicted for allowing a mechanic’s lien to attach to the homeowner’s property. Indeed, the trial court reached this same conclusion, stating:

[Tjhis has been a mechanic’s lien case and has been litigated as a mechanic’s lien case.... [From] my legal background ... in representing contractors building condominiums ... I am well aware of the fact that many mechanic’s liens are filed, jobs and so forth are designated for specific projects and there might be a dispute as to whether the materials are in the job or not.... [W]hat distinguishes this case for this Court basically [is that] in many of those cases, if there is a dispute, normally the contractors have maintained that the product was in the project and [were] able to show it or did show it.... [If] there was a good faith purchase of the supplies, there would be a showing.

We do not agree that appellant’s failure to account for three hundred thirty-six board feet of cedar in the Doyle addition establishes his guilt of grand theft under the theory and evidence advanced by the state. The Florida Forest Products invoice containing the notation “ARC, Doyle job” is the only evidence that links appellant to the alleged endeavor to obtain money from Doyle. While the invoice admittedly reflects that appellant purchased three hundred thirty-six board feet of cedar, it clearly shows that appellant and his company, not Richard Doyle, were billed for the purchase. Because appellant was constructing the Doyle addition under a flat fee contract, his purchase of excess cedar would have no adverse impact on Mr. Doyle.

The crux of the state’s case appears to center around its contention that appellant improperly designated the Doyle residence as the site being improved by the purchase, as evidenced by the invoice notation “ARC, Doyle job.” We point out, however, that the state offered no evidence suggesting that appellant was responsible for that notation’s entry. Indeed, the identity of the person who prepared the invoice, the purpose of the notation, and the circumstances surrounding the notation’s inclusion remain purely matters of speculation.

Even assuming that appellant designated this purchase for improvement of the Doyle property, this fact, coupled with the state’s other evidence, does not support the inference that appellant possessed the requisite criminal intent to deprive Mr. Doyle of money at the time of making the purchase. See State v. Dunmann, 427 So.2d 166 (Fla.1983); McFarland v. State, 368 So.2d 948 (Fla. 4th DCA 1979).

Having concluded that appellant was improperly convicted of a criminal offense for circumstances arising out of a mechanic’s lien problem, we REVERSE appellant’s judgment and sentence and REMAND to the trial court with directions to discharge appellant.

SCHEB and SCHOONOVER, JJ., concur.

      . From the record we are unable to reconcile the discrepancy between the ninety-six board feet of cedar accounted for at the Doyle site and the estimated one hundred sixty-eight feet testified to by the carpenter.

      . In view of our decision reached here, we do not need to rule upon the enforceability of the mechanic’s lien.


author: SCHOONOVER, Judge.

text:
    Diana N. MACIEJEWSKI, Appellant, v. William M. HOLLAND, Jr., P.A., William M. Holland, Jr., as President of William M. Holland, Jr., P.A., and individually, Appellees.
    No. 83-443.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1983.
    J. Scott Taylor, The Legal Center, Tampa, for appellant.
    Katherine B. Huppuch of William M. Hol-lánd, Jr., P.A., Tampa, for appellees.
   SCHOONOVER, Judge.

The appellant, Diana N. Maciejewski, has appealed the trial court’s dismissal of her complaint. We find that the complaint states a cause of action for declaratory relief and accordingly reverse.

The controversy between the parties arose out of the appellees’ representation of appellant in a dissolution of marriage action. After the dissolution action was concluded, the appellant filed a complaint seeking a declaratory judgment concerning the validity of a promissory note and mortgage she had given to the appellees.

The complaint alleged that the appellee, William M. Holland, Jr., individually and on bqhalf of the appellee, William M. Holland, Jr., P.A., caused the appellant to execute the promissory note and mortgage in question. It further alleged that the appellant did not remember executing the instruments, copies of which were attached to the complaint. Moreover, because of certain conduct on the part of the appellees, or in the alternative, due to the appellant’s state of emotional distress at the time the instruments were executed, the appellant should not be bound by them.

After the appellees’ motion to dismiss the complaint for failure to state a cause of action was granted, and the appellant announced that she did not desire leave to amend, the action was dismissed with prejudice, and this appeal timely followed.

In considering a motion to dismiss a complaint for failure to state a cause of action, all material allegations of the complaint are taken as true, and the court is not permitted to speculate as to whether the allegations will ultimately .be proven. Arnold v. Week, 388 So.2d 269 (Fla. 4th DCA 1980). In reviewing the appellant’s complaint in light of this rule, we find it states a cause of action for declaratory relief.

We recognize that the declaratory judgment act is not to be used as a tool to advise attorneys as to the proper path to pursue. Kelner v. Woody, 399 So.2d 35 (Fla. 3d DCA 1981). However, the existence of another remedy does not preclude a judgment for declaratory relief. § 86.111, Fla.Stat. (1981). Accordingly, the appellant cannot be precluded from proceeding in this action merely because she may have been able to file an action either for cancellation of the note and mortgage, or for breach of the contract between her and the appellees.

The appellant has alleged in her complaint doubts as to the validity of the note and mortgage, and this court has held that the determination of the validity of a note and mortgage is a proper matter to be considered in a declaratory decree action. Rice v. Fremow, 165 So.2d 447 (Fla. 2d DCA 1964); see also § 86.021, Fla.Stat. (1981).

We accordingly reverse and remand for proceedings consistent herewith. ,

BOARDMAN, A.C.J., and GRIMES, J., concur.


author: RYDER, Judge.

text:
    Ernest CRAFT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-766.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1983.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and M. Ann Garrison, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

The issue presented for our consideration is whether the trial court committed reversible error by denying the appellant’s motion to sever trial on the offense of possession of a firearm by a convicted felon from trial on two other charges. We find that the trial court did err in this regard.

The charges arose from the following scenario: Ernest Craft, Jr. was arguing with several individuals. He produced a firearm from his pocket and pointed it at James Williams and Cecil Johnson. The police were called to the scene. The officers found Craft as well as the firearm, and Craft was arrested.

In January 1983, Craft was charged by information with aggravated assault with a firearm, carrying a concealed firearm, and possession of a firearm by a convicted felon. Prior to the start of his jury trial, Craft moved for severance of the possession charge. The trial court denied this motion. The jury found Craft guilty of improper exhibition of a dangerous weapon (a lesser included offense to the aggravated assault with a firearm charge), carrying a concealed firearm, and possession of a firearm by a convicted felon.

In order to obtain a conviction for possession of a firearm by a convicted felon, the state must prove that the individual charged is in fact a previously convicted felon. See Ferguson v. State, 379 So.2d 163 (Fla. 3d DCA 1980); Dowling v. State, 210 So.2d 280 (Fla. 2d DCA 1968). Here, evidence was introduced from which the jury could properly conclude that Craft had been convicted of a felony.

Craft has argued to this court that the probative value of the evidence necessary to prove that he was a convicted felon was outweighed by the prejudice which would be inherent during a single trial on all the charges. Craft thus concludes that severance of the charge of possession should have been ordered. See Fla.R.Crim.P. 3.152(a)(2).

The state has responded that the motion to sever was untimely as it was made immediately prior to the commencement of the trial, and severance is a discretionary matter for the trial court. Crum v. State, 398 So.2d 810 (Fla.1981).

The Florida Supreme Court has recently discussed requests for severance where one of the offenses charged is possession of a firearm by a convicted felon. In State v. Vazquez, 419 So.2d 1088 (Fla.1982), our high court stated that a “severance should be granted liberally when prejudice is likely to flow from refusing the severance.” Id at 1090. As proof of a prior felony conviction was (and is) a necessary element to the possession charge, and that proof was irrelevant in proving the other charges lodged against Vazquez, the court concluded that the introduction of evidence concerning the prior felony conviction was unfairly prejudicial to Vazquez during a joint trial on all charges. Id. at 1091. Severance should have been granted. See also Thomas v. State, 440 So.2d 581 (Fla.1983); Orr v. State, 380 So.2d 1185 (Fla. 5th DCA 1980).

Although the firearm was a basis for each of the charges filed against Craft, proof of the prior felony conviction was only relevant on the possession charge. Proof of the earlier conviction was neither relevant nor admissible in proving the other two charges. Orr v. State, supra. Proof of the prior felony conviction was unfairly prejudicial to Craft by depriving him of the presumption of innocence as- to the other charges. Vazquez v. State, supra. Severance of the trial on the possession charge should have been granted; the trial court abused its discretion in denying the motion for severance.

The conviction for possession of a firearm by a convicted felon need not be reversed, and is hereby affirmed. Vazquez v. State, supra. However, as severance should have been granted, the convictions for carrying a concealed firearm and improper exhibition of a dangerous weapon are hereby reversed and remanded for a new trial.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

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

      . We note that appellant may not be retried for aggravated assault with a firearm. The conviction for improper exhibition of a dangerous weapon, a lesser included offense of aggravated assault with a firearm, acts as an acquittal of the aggravated assault charge and bars retrial on the latter charge. United States v. Larkin, 605 F.2d 1360 (5th Cir.1979), on reh’g, 611 F.2d 585 (5th Cir.), cert. denied, 446 U.S. 939, 100 S.Ct. 2160, 64 L.Ed.2d 793 (1980); Chikitus v. State, 373 So.2d 904 (Fla.1979); Hicks v. State, 414 So.2d 1137 (Fla. 3d DCA 1982). Retrial of the conviction for improper exhibition of a dangerous weapon is, of course, permissible.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. James FLOWERS.
    No. 82-KA-2621.
    Supreme Court of Louisiana.
    Sept. 2, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William Credo, Philip Boudousque, Louise S. Korns, Asst. Dist. Attys., for plaintiff-appellee.
    Martha E. Sassone, Staff Appeals Counsel, Gretna, for defendant-appellant.
   DENNIS, Justice.

Defendant, James Flowers, was convicted by a jury of first degree murder and sentenced to death upon the jury’s unanimous recommendation following a sentencing hearing. In this appeal defendant advances seven assignments of error challenging his conviction and sentence. After considering the oral and written arguments of the parties and the record evidence, we conclude that the defendant’s conviction and sentence must be affirmed.

1. Facts

A seventy year old widow who lived alone was brutally murdered in her home at 1500 Jefferson Street in Gretna on October 23, 1981. The physical evidence indicated that she had been severely beaten, strangled and raped during a burglary. The assailant had broken in a window and ransacked the house. Whether any of her property had been taken could not be determined immediately, however.

The next day an anonymous tipster telephoned the Gretna Police Department and furnished information linking the defendant, James Flowers, with the murder. The unidentified caller asked for the police radio dispatcher by name but was told that he was on another call. Whereupon, the informant remarked that he didn’t have time to wait and gave his information to another officer. According to the officer, the tip was to the effect that James Flowers, a black male, could be found in the area of Jefferson and Hamilton Streets driving a small white Chevette-type car containing one black male passenger and something taken from “that lady that was murdered on Jefferson Street yesterday”. This message was given to the dispatcher who relayed it by radio to Officer Glen Michel, on patrol in the Jefferson Street area.

Officer Michel testified that he was advised by police radio to go to the 1500 block of Jefferson Street to look for a small white vehicle, possibly a Chevette or Mercury, driven by a Negro male by the name of James Flowers, who was suspected of having evidence taken during a burglary-murder which occurred the previous day at 1500 Jefferson. At this time, Michel was driving along Madison Street, parallel with Jefferson Street, one block from the murder scene. He was approaching the intersection of Madison and Cook Streets, and was about one third of a block from the corner. Ten seconds later a black male driving a white Mercury came off Jefferson Street, turned onto Cook Street, then turned onto Madison Street ahead of Michel and came to a stop in the next block in which Madison comes to a dead end. Michel pulled through the intersection and up behind the vehicle, activated his red bar light, walked up to the white Mercury and asked the driver for his operator’s license. Upon looking in the window, however, the officer saw some hand rolled marijuana cigarettes in an ashtray by the driver’s right leg. He asked the occupant to exit the vehicle and seized the cigarettes, along with four or five “dime bags” of marijuana and some costume jewelry on the floor. The officer ran a computer check on the defendant’s driver’s license and verified that he was James Flowers.

Although the record does not reflect that Flowers was formally advised that he was under arrest at the scene, it is clear that he effectively was arrested and taken into custody when the officer saw the marijuana and asked him to get out of the car. Following this arrest, Flowers was escorted to the Gretna Police Complex and searched by Officer Michel. The officer discovered a knife and charged the defendant, a convicted felon, with possession of a concealed weapon in violation of La.R.S. 14:95.1. The defendant and all of the seized items were then delivered to Detective Dunn, the officer in charge of the murder investigation.

Detective Dunn showed the jewelry seized by Officer Michel and a necklace which Dunn removed from around the defendant’s neck to members of the victim’s family. The jewelry was positively identified as property of the victim. The defendant was informed that he was under investigation for aggravated burglary and first degree murder and verbally advised of his constitutional rights. The defendant waived his rights and gave a verbal statement in which he implicated himself in the burglary but contended that a confederate had entered the house and committed the murder.

Approximately five hours later, the defendant was placed under arrest for aggravated burglary, first degree murder and receiving stolen property and was again advised of his rights. Flowers, a twenty year old with an eleventh grade education, then signed a standardized waiver-of-rights form and was interrogated by Detective Dunn. The detective typed out his questions and the defendant’s responses thereto. Flowers stated that he never entered the victim’s home and that his participation in the crime was limited to helping the sixteen year old codefendant gain entrance into the home. The victim’s screams caused the two defendants to seek shelter along a nearby railroad track, where approximately eighty dollars was divided. Flowers told Detective Dunn that he and his confederate then parted company with Flowers returning to his home as the codefendant returned to the victim’s house. Within thirty minutes the two were reunited along the railroad tracks and at this point, according to Flowers’ statement, the jewelry which Officer Michel seized was given to Flowers for safe-keeping.

2. Investigatory Stop

Prior to trial defendant moved to suppress his inculpatory statements and the evidence seized from the automobile and his person, claiming that they were fruits of an illegal arrest made without probable cause. After an evidentiary hearing, the district court denied the motion to suppress without assigning reasons. The defendant reurges as an assignment of error the issues raised by the motion to suppress.

Probable cause for arrest did not exist at the time Officer Michel approached the defendant’s car, but probable cause for arrest did exist once the officer sighted the marijuana cigarettes in Flowers’ possession. Although the defendant argues briefly against the existence of probable cause at any time, we reject his contention because the officer testified without dispute that he immediately recognized the handrolls as marijuana cigarettes based on his experience of having made approximately 2000 arrests for possession of marijuana. The only genuine issue raised by defendant’s assignment is whether the officer’s actions preceding the arrest for possession of marijuana constituted a valid investigatory stop. If the pre-arrest detention was a valid investigatory stop, the officer was not guilty of making an unlawful intrusion before he sighted the marijuana in defendant’s possession. Upon sighting the illegal drugs, he would have had probable cause to arrest the defendant and seize the evidence as an incident to a valid arrest untainted by any previous unlawful intrusion.

The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-1878, 20 L.Ed.2d 889 (1968). Stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention is quite brief. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person, Terry v. Ohio, supra 392 U.S. at 16, 88 S.Ct. at 1877, and the Fourth Amendment requires that the seizure be “reasonable.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). Because of the limited nature of seizures less intrusive than a traditional arrest, however, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest. Instead, the conduct involved must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. Terry v. Ohio, supra 392 U.S. at 21, 88 S.Ct. at 1879; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Brignoni-Ponce, 422 U.S. at 880-882, 95 S.Ct. at 2579-2580.

In order to assess the reasonableness of such official conduct as a general proposition, it is necessary first to focus on the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interest of the private citizen, for there is no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizures entails. Terry v. Ohio, supra 392 U.S. at 20, 88 S.Ct. at 1879; Camara v. Municipal Court, 387 U.S. 523, 534-535, 87 S.Ct. 1727, 1733-1734, 18 L.Ed.2d 930 (1967). And in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant that intrusion. United States v. Brignoni-Ponce, supra 422 U.S. at 884, 95 S.Ct. at 2581. The conduct of those charged with enforcing the laws is subject to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment, the facts must be judged by an objective standard: would the facts available to the officer at the moment of seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result which the United States Supreme Court has consistently refused to sanction. United States v. Cortez, supra 449 U.S. at 417-418, 101 S.Ct. at 694-695. And simple good faith on the part of the arresting officer is not enough. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate and the people would be secure in their persons, houses, papers and effects only in the discretion of the police. Terry v. Ohio, supra; Beck v. Ohio, 379 U.S. 89, 96-97, 85 S.Ct. 223, 228-229, 13 L.Ed.2d 142 (1964).

Thus, there are at least three inquiries involved in determining whether a seizure was a valid investigatory stop: (a) whether the intrusion was an arrest or a stop; (b) whether the stop was of a type which is reasonable in view of the public interest served and the degree of invasion entailed; and (e) whether the particular stop was warranted by a reasonable suspicion based on specific, articulable facts and rational inferences from those facts. In the present case, this last inquiry involves the question of whether the anonymous tip was corroborated and supplemented by the officer’s observations sufficiently to provide a reliable source of such specific, articulable facts and inferences.

a. Whether There Was An Arrest Or A Stop.

The distinction between an arrest and a stop is crucial in many cases, for an arrest can be made only on probable cause, while a stop is proper under the more relaxed “reasonable suspicion” standards of Terry. It is possible only to sketch some of the main features that demarcate the two types of intrusions. In Dunaway v. New York, 442 U.S. 200, 92 S.Ct. 2248, 60 L.Ed.2d 824 (1979), the high court found a stop for questioning indistinguishable from a traditional arrest because the suspect was not questioned briefly where he was, was transported to the police station, was never informed he was free to go and, in fact, would have been restrained had he tried to leave. Among the circumstances, other courts have considered important to classifying the intrusion as either an arrest or a stop are: the officer’s intent in stopping the citizen; the impression conveyed to the citi-. zen as to whether he was in custody or only briefly detained for questioning; the length of the stop; the questions, if any, asked; the extent of the search, if any, made; and the amount of force, if any, used to make the stop. See, e.g., U.S. v. White, 648 F.2d 29, 34 (D.C.Cir.1981).

Reviewing the facts of the present case in light of these considerations, we conclude that Flowers was subjected to an investigatory stop, not an arrest, before he was removed from the automobile and arrested for possession of marijuana. The officer used no weapon or physical force to restrain the defendant, but merely turned on his bar light and asked to see his driver’s license— police conduct which does not normally signify or inevitably lead to an arrest. The officer did not perform a weapons search or even ask the defendant to leave the automobile before sighting the marijuana. There is no indication that the officer intended to do anything other than identify the defendant and briefly question him where he was. Nor does the record suggest that a refusal to answer questions or an attempt to leave would have led to restraint or prolonged detention. On the contrary, prior to his arrest for possession of marijuana, the defendant was subjected to only a very brief detention without a search during which he was asked only for his operator’s license.

b. Whether the Stop was of a Reasonable Type

Applying the precepts set forth above to this case, we consider first the nature and extent of the governmental interests involved. It is obvious that the public interest demands effective measures to prevent and investigate the types of violent crimes suffered by the victim in this case. The offenses involved here were not violations of mere sumptuary laws but some of the most bestial and antisocial of all crimes. Moreover, there often is no practicable alternative available to officers investigating such crimes except to insist on an encounter with the suspect. Failure to identify suspicious persons in the vicinity of a recently committed violent crime may mean the loss of the only opportunity for bringing the offender to justice.

Against this valid public interest we must weigh the interference with individual liberty that results from a brief stop for questioning. The intrusion is modest. A person stopped under such circumstances is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation. See Terry v. Ohio, 392 U.S. at 34, 88 S.Ct. at 1886 (White, J., concurring.) A brief stop of a suspicious individual, in order to determine his identity or to ask him to explain suspicious circumstances, may be most reasonable in light of the facts known to the officer at the time. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

Because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives, we conclude that when an officer’s observations, together with a substantially corroborated tip, lead him reasonably to suspect that a particular vehicle may contain evidence of a recent violent crime, he may stop the car briefly and investigate the circumstances that provoke suspicion. See Delaware v. Prouse, supra 440 U.S. at 654, 99 S.Ct. at 1396; United States v. Brignoni-Ponce, supra 422 U.S. at 881, 95 S.Ct. at 2580.

c. Whether the Particular Stop was Warranted

The United States Supreme Court has recognized that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to arrest or to search for contraband or evidence of crime. United States v. Brignoni-Ponce, supra at 881, 95 S.Ct. at 2580; Adams v. Williams, supra 407 U.S. at 145, 92 S.Ct. at 1922; Terry v. Ohio, supra. Nevertheless, the Fourth Amendment requires that the detaining officer have knowledge of specific, articulable facts which, taken together with rational inferences from those facts, reasonably warrant the “stop” or “seizure.” United States v. Cortez, supra; United States v. Brignoni-Ponce, supra; Terry v. Ohio, supra 392 U.S. at 21, 88 S.Ct. at 1879; State v. Brown, 370 So.2d 547 (La.1979).

An officer’s knowledge of facts need not be based on his personal observations. On the contrary, an officer can, and in many situations must, act upon information supplied by another person, be it a fellow officer or an informant. This court and the United States Supreme Court have recognized that an informant’s tip can provide a police officer with reasonable cause to detain and question a suspect. Adams v. Williams, supra; State v. Wilson, 366 So.2d 1328 (La.1978); State v. Sims, 350 So.2d 1189 (La.1977). Informant’s tips may vary greatly, however, in their value and reliability. One simple rule, or test for “reasonableness,” will not cover every situation. Adams v. Williams, supra 407 U.S. at 147, 92 S.Ct. at 1923.

When the state asserts the reasonableness of an investigatory stop made in response to an informant’s tip the reliability of both the informant and his information must be satisfactorily demonstrated, or, if the tip is inadequate under this standard, it may be deemed sufficiently trustworthy on the basis of corroboration by independent sources. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Brown, supra at 551; State v. Richards, 357 So.2d 1128 (La.1978). This standard must be maintained as a seizure based upon an unverified or undifferentiated tip derived from an undisclosed source would be unreasonable and, consequently, unconstitutional. State v. Wilson, 366 So.2d 1328 (La.1978).

The tip in the instant case involved a detailed and particularized description of a single individual. Defendant was described as a black male by the name of James Flowers, who would be driving a white Che-vette or Mercury in the 1500 block of Jefferson Street. Additionally, the informant indicated that defendant had in his possession items taken during the burglary-murder committed at that address on the previous day.

The informant’s familiarity with both the murder at 1500 Jefferson and James Flowers’ plans to visit that area significantly reduced the chances that this information was unreliable. Although a tipster could easily link Flowers with a crime based purely on rumor, it would appear unlikely that he could so accurately predict Flowers’ actions without personal knowledge of his affairs. Remoter still was the possibility that a clever enemy of an innocent James Flowers would bring about his encounter with police near a murder scene merely to inconvenience him. Once Flowers appeared in the white Mercury and stopped his car about a block from 1500 Jefferson, the possibility that the informant’s story was truthful and reliable became substantial and much more likely than any other hypothesis.

In this particular case there is very little chance that the tip could have been fabricated after the stop. The informant’s tip was handled by two officers, with one of them making a written record of the call and the informant’s statements, as the other, the dispatcher, placed a radio call into the field. Two additional officers testified that they heard the tip relayed by radio to Officer Michel.

Consequently, because of the substantial corroboration of the tip and the peculiar circumstances involved before the encounter occurred, the risks usually associated with the use of an anonymous tip, i.e., lack of informant credibility or basis of knowledge and police fabrication, were substantially reduced. See generally LaFave, supra, § 9.3. Accordingly, we conclude that the information was sufficiently reliable and afforded the officer specific, articulable facts which, taken together with rational inferences, justified the temporary stop of defendant for questioning.

The motion to suppress was correctly denied and the assignment of error based on this ruling is without merit.

The remaining issues relate to the penalty phase of the bifurcated trial.

3. Failure to Define Mitigation

In his first assignment of error the defendant contends that the trial judge committed reversible error as he violated defendant’s constitutional rights through his failure to explain clearly what statutory mitigating circumstances are and their function in the jury’s sentencing deliberations. La.C.Cr.P. art. 905.5. The thrust of the defense’s argument is that the phrase “mitigating circumstances” is a term of art which should have been defined by the judge. Counsel argues that the judge should have advised the jury that “mitigating circumstances" are “circumstances which do not justify or excuse an offense, but which, in fairness or mercy may be considered as extenuating or reducing the degree of moral culpability and punishment,” citing Spivey v. Zant, 661 F.2d 464, 471, n. 8 (5th Cir.1981).

The federal cases to which counsel for defendant has directed our attention do not require that the jury be given definitions of the concept of “mitigating circumstances.” The jury must receive clear instructions which not only do not preclude consideration of mitigating factors, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), but which inform the jury of its duty and authority to consider the qualities and characteristics of the individual offender and the circumstances of the particular offense. Spivey v. Zant, supra.

We find that the trial judge clearly and concisely instructed the jury on mitigation and its authority to recommend against death. The judge read Code of Criminal Procedure article 905.5 to the jury, emphasized to the jury its authority to consider any other relevant circumstances, and handed the jury a copy of the lists of aggravating and mitigating circumstances. Any further attempt to define or expand upon statutory mitigating circumstances may only lead to juror confusion and further efforts to define the definitions. Compare, e.g., State v. McDaniel, 410 So.2d 754 (La.1982) (noting the traps for an unwary trial court attempting to define “reasonable doubt.’’) Based on the instructions given, the jury could properly exercise its role as finder of fact.

This argument appears to lack merit.

4. Weighing the Circumstances

In assignment number two the defendant argues that the trial judge failed to instruct the jury to find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances prior to recommending the death sentence and, therefore, committed error.

This court has recently considered and rejected this argument. State v. Welcome, (La.1983), No. 82-KA-2232. The law of this state, La.C.Cr.P. art. 905.3 requires that the jury find unanimously and beyond a reasonable doubt the existence of at least one statutorily defined “aggravating circumstance.” Having found a statutory aggravating circumstance, the jury is required to consider evidence of any mitigating circumstances, and to weigh it against the statutory aggravating circumstance so found, before recommending that the sentence of death be imposed. State v. Willie, 410 So.2d 1019, 1033 (La.1982). Our statute is modeled upon the one approved by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

This assignment has no merit.

5. Irrelevant Aggravating Circumstances

By this assignment of error, the defendant argues that the trial judge committed reversible error at the sentencing phase when he instructed the jury on aggravating circumstances under La.C.Cr.P. art. 905.4 that had no possible evidentiary basis in the record.

In his instructions to the jury the trial judge read the lists of aggravating and mitigating circumstances, C.Cr.P. arts. 905.4 and 905.5 and then stated:

The fact that you are given a list of aggravating circumstances should not cause you to infer that the Court believed that any of the circumstances do or do not exist.
The law requires that the jury be given such a list in every case.
Whether any aggravating or mitigating circumstances exists is a fact for you to determine based upon the evidence presented.
In addition to the evidence presented at this sentence hearing—sentencing hearing in deciding the sentence to be imposed you may consider evidence presented during the guilt determination of the trial.

Defense counsel contends that when the trial judge instructed the jury on the admittedly extraneous aggravating circumstances, i.e. that the victim was a fireman or peace officer, the defendant was a hired killer, the defendant was imprisoned at the time of the murder, or that the victim was a correctional officer or an employee of the Louisiana Department of Corrections, he failed to properly guide and focus the jury’s deliberations as is required by the Eighth and Fourteenth Amendments. See Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

We can find no reversible merit in counsel’s argument. The court clearly instructed the jury that it must review the evidence before it and determine which, if any, of the aggravating circumstances was proven beyond a reasonable doubt to exist. The trial judge did not tell the jury to disregard the aggravating circumstances which obviously could not be found to exist, but such instructions are implicit in the ones given. Furthermore, we cannot accept counsel’s argument as it suggests that a judge, with the aid of counsel, should review the nine aggravating circumstances and instruct the jury only as to the ones supported by the evidence at trial. While such a procedure is permissible and desirable, it is not required constitutionally or statutorily.

This assignment has no merit.

6. Double Jeopardy

By assignment of error No. 4, the defendant argues that our capital punishment scheme, under which the same felony may form the basis of an essential element of the crime and an aggravating circumstance for consideration by the jury in recommending a sentence, constitutes a denial of the guarantee against double jeopardy. The double jeopardy clauses embrace three separate rules prohibiting (1) reprose-cution for the same offense following acquittal, (2) reprosecution for the same offense following conviction, and (3) multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); State v. Chaisson, 425 So.2d 745 (La.1988). The capital punishment system does not permit or promote a violation of any of these rules and therefore does not violate the double jeopardy clauses. Moreover, the essence of the defendant’s attack, although articulated differently, has been considered and rejected by this court before. See State v. Knighton, 436 So.2d 1141, (La.1983) (aggravating circumstances consist only of the elements of the crime); State v. Clark, 387 So.2d 1124 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 830 (1981).

7. Appellate Review of Sentencing

Through these assignments of error the defendant contends that Louisiana’s system of appellate review to insure evenhanded disposition of cases imposing the death penalty is constitutionally flawed in not mandating statewide review of the sentence imposed in similar cases. This court previously considered the question and a majority decided that proportionality review of death sentences within a judicial district, rather than on a statewide basis, passes constitutional muster. State v. Prejean, 379 So.2d 240 (La.1979), cert. denied, 449 U.S. 891, 101 S.Ct. 253, 66 L.Ed.2d 119 (1980). See also Williams v. Maggio, 679 F.2d 381 (5th Cir.1982); Baldwin v. Blackburn, 653 F.2d 942 (5th Cir.1981).

Capital Sentence Review

Every sentence of death imposed in this state is reviewed by this court to determine if it is constitutionally excessive. In making this examination, the court determines whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factors, whether the evidence supports the jury’s findings of a statutory aggravating circumstance, and whether the sentence is disproportionate to the penalty imposed in similar eases, considering both the crime and the defendant. La.C.Cr.P. art. 905.9.

A. Aggravating Circumstances

As noted above, in discussion of assignment number four, the jury found and listed five aggravating circumstances. La.C.Cr.P. art. 905.4 and 905.7. We have reviewed the record with respect to three of the aggravating circumstances and conclude that the evidence is sufficient to support a reasonable jury’s findings beyond a reasonable doubt of these aggravating circumstances.

The jury found that the offender was engaged in the perpetration of aggravated rape. La.C.Cr.P. art. 905.4(a). Aggravated rape includes nonconsensual anal or vaginal sexual intercourse committed where the victim resists the act to the utmost, but is overcome by force, or where the victim is prevented from resisting the act by threat of great and immediate bodily harm. La. R.S. 14:42. The record supports a finding beyond a reasonable doubt that James Flowers had sexual intercourse with the victim, a seventy year old widow, and that the victim did not give her lawful consent. The evidence before this court, which included photographs of the victim’s bruised and bloodied body and the autopsy report which indicates that the victim died of a brain hemorrhage, supports the jury’s conclusion that the victim resisted the act to the utmost or was prevented from resisting by Flower’s threats of great and immediate bodily harm.

The jury found that the offender was engaged in the perpetration of aggravated burglary. La.C.Cr.P. art. 905.4(a). Aggravated burglary includes the unauthorized entering of a structure where a person is present, with the intent to commit a felony or a theft therein, when the offender commits a battery upon any person while in such place. La.R.S. 14:60. The evidence before the jury clearly establishes that James Flowers unauthorizedly entered the victim’s home with the intent to commit a theft. The evidence further establishes that he battered the seventy year old woman while he was inside of her home. The evidence, therefore, clearly supports the jury’s finding of the aggravated burglary aggravating factor beyond a reasonable doubt.

The jury found that the offense was committed in an especially heinous, atrocious or cruel manner. La.C.Cr.P. art. 905.4(g). This court has held that in order for the jury to conclude that the offense was committed under this aggravating circumstance there must exist evidence, from which the jury could find beyond a reasonable doubt, that there was torture or the pitiless infliction of unnecessary pain on the victim. State v. Sonnier, 402 So.2d 650 (La.1981). Madeline Malmstron, the seventy year old victim, was severely beaten about the head and face, strangled and raped. Patterned abrasions and bruises on her neck were later matched up to the patterns in the soles of the defendant’s tennis shoes. The victim’s jaw was broken, several teeth were knocked loose, and she suffered at least three broken ribs. Serious physical abuse of the victim before death, such as that which this victim suffered constitutes torture. The jury’s finding that the homicide was committed is an especially heinous, atrocious or cruel manner is supported by the evidence.

This court has taken the position that where more than one statutory aggravating circumstance is found by the jury, the state’s failure to prove the other aggravating circumstances found by the jury does not invalidate the aggravating circumstances determined and the sentence of death based thereon. State v. Antonio James, 481 So.2d 399 (La.1983). Consequently, it is not necessary for us to consider whether the evidence supports the jury’s other findings of statutory aggravating circumstances. State v. Mattheson, 407 So.2d 1150 (La.1981).

B. Passion, Prejudice or Arbitrariness

Although the defendant is a black man and the victim was a white female, the record is devoid of any evidence that racial prejudice was a factor in the imposition of the death penalty. Our review of the record and of applicable law convinces us that this death penalty was not imposed arbitrarily or without reason or out of local passion.

C. Proportionality of Sentence

The final focus of this Court’s sentence review in a capital case is a determination of whether the sentence in the instant case is disproportionate to the penalty imposed in similar cases in the same parish. Both the crime and the defendant must be considered.

Pursuant to Supreme Court Rule 28 § 4, the state filed a sentence review memorandum which listed the twenty-two first degree murder cases in the Twenty-Fourth Judicial District in which sentence was imposed after January 1, 1976. The death penalty was imposed in six of these cases.

A comparison of the sentence in this case to sentences in other first degree murder prosecutions shows that it is not a disproportionate sentence. The instant offense was committed without provocation and in a particularly brutal manner in that the defendant beat his victim, breaking her jaw and several ribs, and raped her before killing her. Juries in the Twenty-Fourth Judicial District have recommended the death penalty in other cases involving crimes committed in such a senseless, brutal fashion as the instant murder was committed.

DECREE

For these reasons the defendant’s conviction and sentence of death are affirmed.

AFFIRMED.

MARCUS, J., concurs.

BLANCHE, J., concurs and will assign reasons.

      . We are guided in this three part analysis by a number of decisions wherein the reviewing court emphasized that the detached, neutral judicial scrutiny to which police conduct is subjected involves the traditional inquiries, i.e. what is the nature of the intrusion (was it a stop or an arrest) and what were the objective facts upon which the law enforcement officer relied, as well as an examination of the governmental, or public, interest to be served. See United States v. Brignoni-Ponce, 422 U.S. at 881, 95 S.Ct. at 2580; United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (Powell, J. concurring); United States v. White, 648 F.2d 29 (D.C.Cir.1981). An implicit consideration is, therefore, the seriousness of the criminal conduct under investigation. The governmental or public interest in the prevention of serious or violent crimes, and the quick apprehension of those who commit this type of offense is generally stronger than that which exists when an individual commits, or is suspected of having committed, a nonviolent or possessory offense. This heightened public interest in the case of serious or violent crimes can tip the scales in favor of the reasonableness of the police conduct. United States v. Soyka, 394 F.2d 443 (2nd Cir.1968); United States v. Kancso, 252 F.2d 220 (2nd Cir.1958); See also, LaFave, Search and Seizure — A Treatise on the Fourth Amendment, § 3.2 (1978).

      . Officer Michel testified that he stopped the White Mercury Cougar “to see if the driver was named James Flowers.” As in White, 648 F.2d at 34, where the officers stopped the defendant’s car to “further his investigation,” this case involves an officer who initially intended to question, not arrest, the appellant. In both instances visual inspection of the automobile revealed narcotics which in turn gave the officer probable cause to make the arrest.

      . State v. Sawyer, 422 So.2d 95 (La.1982); State v. Taylor, 422 So.2d 109 (La.1982); State v. Robinson, 421 So.2d 229 (La.1982).


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Alvin SOCO.
    No. 82-KA-2019.
    Supreme Court of Louisiana.
    Nov. 28, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Hor-tence Patterson, Asst. Dist. Attys., for plaintiff-appellee.
    Vernon Thomas and Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Defendant was convicted of armed robbery, R.S. 14:64. He was sentenced to the maximum term of ninety-nine years. From that sentence, defendant appeals.

Bobby Morgan, the victim, related that on November 28, 1980 he was working at the Dixie Parking Lot on St. Charles Avenue in New Orleans. After the last customer left, around 5:00 p.m.:

"... this robber came right in the shack, pushed me down, showed me his gun, pointed it at me, put it back in his belt, slapped me, and proceeded to take all the money I had, including my own and the company money. It lasted ... less than five minutes. Then, when he went running, ... I got up and called the police.”

Approximately $110.00 of the victim’s own money and $250.00 of the company’s money was taken. The victim identified defendant as the armed robber, both by photographic lineup and identification in the courtroom. There was alibi testimony that defendant was in Napoleonville at the time of the robbery, but the unanimous jury convicted him nonetheless.

At the sentencing hearing, the judge gave the following recitation:

“All right, in view of the fact that this defendant has demonstrated to this Court he has no respect for law and order, when he gets up here and commits perjury, after having committed the felony of armed robbery, and that he does not intend to rehabilitate. He has convinced me beyond a reasonable doubt to that effect. He just wants to get out so he can do it all over again. Next time, he won’t get caught- maybe, he figures.
It is therefore, the sentence of this Court that you shall serve ninety-nine years at hard labor ...”

Maximum sentences provided by the statutes are reserved for the “worst kind of offender.” State v. Quebedeaux, 424 So.2d 1009,1014 (La.1982). In order for there to be proper review of the sentence to determine its constitutionality, La. Const, art. 1, § 20, that is, whether the defendant is the worst kind of offender, an adequate record specifying the basis for the sentence must be made. This record is mandated by C.Cr.P. 894.1, which also provides the sentencing judge with guidelines to follow when passing sentence. In the absence of compliance with C.Cr.P. 894.1, it is impossible for this court to determine whether the sentence for this particular defendant is constitutionally excessive.

While the trial judge need not recite the entire article 894.1 checklist of aggravating and mitigating factors, the record must reflect that the judge adequately considered the guidelines. State v. Quebedeaux, supra; State v. Trahan, 412 So.2d 1294, 1296 (La.1982). Important elements which must be considered are the convict’s personal history (age, family ties, marital status, health, employment record), prior criminal record or absence thereof, seriousness of the particular offense, and the likelihood of recidivism or rehabilitation. State v. Quebedeaux, supra; State v. Trahan, supra. Further, the judge must state for the record the considerations taken into account and the factual basis therefor. C.Cr.P. 894.1(C); State v. Jones, 398 So.2d 1049, 1052 (La.1981). The judge must, in effect, justify his sentence with factual reasons.

In his reasons for sentence, the judge below recited only that defendant committed perjury and thereby showed no intent to rehabilitate. The defendant’s credibility is not necessarily a relevant factor for determining the proper sentence (State v. Smith, 407 So.2d 652, 657 (La.1981)) and certainly not sufficient to justify the maximum sentence. The judge evidently failed to consider that defendant had no prior criminal record. The record fails to disclose whether the judge considered the guidelines at all, especially with regard to the mitigating factors. By the judge’s failure to comply with article 894.1, the record does not demonstrate that defendant is the worst kind of offender, deserving of the maximum sentence.

Accordingly, defendant’s conviction is affirmed, the sentence is set aside, and the case is remanded to be reassigned to another judge for resentencing in accordance with the provisions of C.Cr.P. 894.1.


text:
    STATE of Louisiana v. Cannon Farrell FAULKNER, Jr.
    No. 82-KA-2306.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Alfred R. Ryder, Dist. Atty., Errol D. Deshotels, Asst. Dist. Atty., for plaintiff-appellee.
    Robert Royer, Baton Rouge, for defendant-appellant.
   DIXON, Chief Justice.

The defendant was found guilty of second degree murder, in violation of R.S. 14:30.1, for shooting his landlord. He was sentenced to life imprisonment at hard labor and brings this appeal. The _ defendant argues that the trial court erred in refusing to admit into evidence the defendant’s testimony of his knowledge of the victim’s bad character, and argues that the evidence was insufficient to support a guilty verdict.

The defendant had lived in a small trailer on the victim’s property for four to five months. He paid no rent, but was expected to watch the property of the victim. The victim arranged for electricity to be provided for the trailer, but had the bill sent to himself. The parties agreed that the defendant would pay the bill. The electric bill was higher than expected, and the fatal shooting occurred on a day when the victim came to collect for the bill.

The defendant testified that he was scared; that he shot to protect himself. A homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm, and that the killing is necessary to save himself from that danger. R.S. 14:20.

The defendant sought to introduce into evidence his knowledge of a prior act of violence by the victim to show the defendant’s state of mind and his knowledge of the victim’s violent character. (The victim had told the defendant on an earlier occasion that he had pulled a gun on a sheriff during a domestic quarrel). Only that one act of prior violence was offered, and no evidence was offered to show that the victim had a general propensity toward violence or a general reputation for violence.

The trial court determined that the defendant had not made a proper showing of a hostile demonstration or overt act on the part of the victim, as required by R.S. 15:482 and would not admit the evidence of the prior act of violence.

An overt act by the victim must cause a reasonable person to fear that he is in imminent danger of great bodily harm to justify a homicide. State v. Jackson, 419 So.2d 425 (La.1982). In State v. Cavalier, 421 So.2d 892, 894 (La.1982), this court found no appreciable overt hostile act when the victim walked across the street toward the defendant and reached into his waistband. In State v. Edwards, 420 So.2d 663, 670 (La.1982), the court found an overt act or hostile demonstration when the victim sprang from the bed, cursed the defendant and told her: “I told you I’d kill you if you come (sic) here again.” The victim was two feet from the defendant when he was shot, and the defendant had backed away before shooting.

In State v. Jackson, supra (on rehearing), this court found that the defendant reasonably believed herself to be in imminent danger of assault when the victim approached her in a threatening manner, cursing and holding her right arm behind her, and continuing to advance after warning shots had been fired. When the fatal shot was fired, the defendant had backed up against a parked car.

Faulkner testified that the victim approached him with his hands doubled up and on his hips. The defendant quoted the victim as stating: “I ought to whip your ass.” He later quotes him as stating: “I’m going to whip your ass.” The victim then took a few steps toward the defendant, but was still eight to ten feet from the defendant when he was shot.

The defendant was in the doorway of his trailer and might have retreated inside. He did not display his gun before firing, nor did he fire any warning shots. The victim was a larger and younger man than the defendant, but displayed no weapon or other intent to inflict great bodily harm. Because there was ho overt act or hostile demonstration sufficient to warrant a reasonable apprehension of imminent death or great bodily harm, the trial court did not err in sustaining the objection to evidence of an earlier assault by the victim upon another person.

In his second argument, the defendant contends that the evidence presented at trial was insufficient to support the verdict. He claims that the homicide was justifiable and that the evidence shows that it was committed in self-defense.

The state presented evidence to show that the defendant had previously disagreed with the victim concerning the light bill, and had discussed his feelings with some of his neighbors. According to their testimony, he told them that he would not run from the victim, and added: “Well, I can’t fight him. I’ll have to hurt him. If [he] comes at me, I’ll kill [him].”

There was testimony that the defendant shook his finger at the victim after he was shot and said, “Now, ..., you won’t screw me on my light bill any more.” There was sufficient evidence of hostility on the part of the defendant against the victim to lead a reasonable trier of fact to believe that the defendant awaited a confrontation and was prepared to kill.

Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. The standard for a finding of guilt announced by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), has been met. See State v. Lynch, 436 So.2d 567 (La.1983).

The defendant’s conviction and sentence are affirmed.

LEMMON, J., dissents and will assign reasons.

      . “In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.” R.S. 15:482.


author: CALOGERO, Justice. DIXON, Chief Justice

text:
    STATE of Louisiana v. Roy Dale COX.
    No. 82-KA-1862.
    Supreme Court of Louisiana.
    Nov. 28, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    Claude R. Sledge, Mansfield, for defendant-appellant.
   CALOGERO, Justice.

Defendant Roy Dale Cox, after pleading guilty to simple burglary in violation of La.R.S. 14:62, was sentenced to three years at hard labor. This Court affirmed the conviction, vacated the sentence as apparently excessive and remanded for resen-tencing in compliance with La.C.Cr.P. art. 894.1. State v. Cox, 413 So.2d 514 reh’g granted (No. 81-KA-2231) (La.1982). In accordance with this Court’s order, the trial judge conducted proceedings on the resentencing. At that time the trial judge resentenced defendant, this time to eighteen months at hard labor with credit for all time previously served in connection with the offense.

In defendant’s sole assignment of error he contends that the trial judge erred in imposing an excessive sentence and in failing to state for the record a factual basis for the sentence imposed, as required by La.C.Cr.P. art. 894.1. Because we find the assignment lacks merit, we affirm defendant’s sentence.

La.C.Cr.P. art. 894.1 sets forth three factors which justify a sentence of incarceration, and eleven factors which, although not excusing the defendant’s conduct, tend to lessen his culpability. State v. Dokes, 398 So.2d 1025, 1026 (La.1981). The trial judge is required to state for the record both the considerations he has taken into account and the factual basis for the imposition of sentence, particularizing the sentence to the offender and to the offense. State v. Sepulvado, 359 So.2d 137 (La.1978); State v. Jackson, 360 So.2d 842 (La.1978).

The record indicates that in resentencing defendant to eighteen months at hard labor the trial judge considered the mitigating circumstances as well as those which weighed in favor of defendant’s incarceration. The trial judge concluded that although defendant had no prior record of criminal activity there were certain background factors which indicated that defendant might be likely to commit another crime if he were to receive a suspended sentence. The trial judge also considered defendant’s background and the presen-tence investigation report in determining that defendant is in need of correctional treatment or a custodial environment provided most effectively by his commitment to an institution. La.C.Cr.P. art. 894.1(A) (D,(2).

After reviewing the record, we find that the trial judge did sufficiently articulate reasons for imposing the eighteen month sentence. Further, considering the wide discretion afforded the trial judge in the imposition of a sentence within the statutory limits, and the absence of a manifest abuse of his discretion, we do not find as a matter of law that the sentence is constitutionally excessive. State v. Spencer, 374 So.2d 1195 (La.1979).

Decree

For the reasons assigned defendant’s sentence is affirmed.

SENTENCE AFFIRMED.

DIXON, C.J., dissents with reasons.

LEMMON, J., concurs and will assign reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The record in this case does not support a penitentiary sentence.

      . La.R.S. 14:62 provides for a maximum sentence of twelve years imprisonment with or without hard labor.

      . La.C.Cr.P. art. 894.1 provides:
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.


author: MARCUS, Justice.

text:
    In re Interdiction of Janice LeBLANC.
    No. 83-C-0527.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Malvern F. Driscoll, New Orleans, for applicant.
    Henry B. Hoppe, Jr., Hoppe & Schaefer, Metairie, for respondent.
   MARCUS, Justice.

■ The question presented by this case is whether a trial court, in fulfilling its duty set forth in La.R.S. 9:1423 to fix the fees allowed to notary publics and appraisers appointed to assist taking inventories, can rely solely on a local court rule that sets the fees as a fixed percentage of the inventory.

The trial court in the interdiction of Janice LeBlanc appointed Henry B. Hoppe, Jr. as notary and Alvin Talley, Jr. and Pat Bond as appraisers to take inventory of the interdict’s property in the parish. The notary and appraisers completed and executed the inventory and billed the interdict’s curator $5,022.15 for the services. They fixed the notary’s fee as two percent and the appraisers’ fees as one half of one percent each of the total value of the inventoried property ($167,405.07). The curator considered the fees excessive and refused to pay.

The notary and appraisers filed a rule against the curator to show cause why their fees should not be fixed by the court at the “prevailing local set fees” of two percent of the total value of the inventory for the notary and one half of one percent for each appraiser and be taxed as costs in the interdiction proceedings. After a hearing, the trial judge, feeling bound by the court’s own rule, rendered judgment in favor of the notary and appraisers and against the curator in the sum of $3,348.10 for the notary and $1,674.05 for the appraisers in accordance with said rule and taxed the fees as costs. The curator appealed. The court of appeal, finding that the local court rule had the force of law since it did not conflict with express law and that the fees were not excessive, affirmed the judgment of the trial court. Upon the curator’s application to this court, we granted certiorari to review the correctness of that decision.

The curator contends that a fixed percentage of inventory is not a proper method of determining reasonable fees under La. R.S. 9:1423. He also argues that the fees in this case were excessive in view of the amount of work done.

This court has recently considered whether certain notary and appraiser fees under La.R.S. 9:1423 were excessive. Hill v. Hill, 434 So.2d 1078 (La.1978) consolidated with Tutorship of Perret, 435 So.2d 442 (La.1983). Both cases arose out of the Twenty-Fourth Judicial District Court, but the judge in neither case relied solely on Rule 13, § 8; thus, the validity of that rule was not at issue. We held that, under La.R.S. 9:1423, “the court is constrained to fix fees which are reasonable. To determine reasonable fees for the notary and appraisers, the court should consider many factors such as (1) the time and labor of the notary and appraisers, (2) the value of the inventory, (3) the number of property items to be inventoried, (4) the fee customarily charged in the locality for similar services, and (5) the experience, reputation and ability of the notary and appraisers.”

Rule 13, § 8 conflicts with La.R.S. 9:1423 because the rule denies the trial court the opportunity to consider these factors to determine a reasonable fee. The rule, by setting the fees at a fixed percentage of inventory in all cases, requires the court to consider only the size of the inventory, without weighing the other factors or evaluating the reasonableness of the fees.

Although the value of the inventory is one of the relevant criteria for determining a reasonable fee, it should not be the only consideration. Hence, Rule 13, § 8, insofar as it conflicts with the duty imposed by La.R.S. 9:1423 to fix a reasonable fee, is • invalid.

Applying the above-listed factors to the present case, we find that the fees set by the trial court and affirmed by the court of appeal were unreasonable. The record reveals that Mr. Hoppe, the notary, did not actually conduct the inventory or prepare the inventory document. The curator’s attorney prepared the inventory document and presented it to the notary. Mr. Hoppe merely reviewed the document with the appraisers, had the appraisers and witnesses sign it in his presence, and signed it himself. Mr. Hoppe is an attorney and therefore has special training that qualifies him as a notary. Neither Mr. Talley nor Ms. Bond has special training as an appraiser, but both have served as court-appointed appraisers numerous times before this trial. Mr. Talley and Ms. Bond testified that they fulfilled their duties in this case by reading the inventory document to review it and by signing it. They did no independent verification of any of the values assigned to the property. Neither the notary nor the appraisers could recall how much time was spent performing these services. The inventory contained seven items: three savings accounts, an interest in two family corporations (four shares of stock in each), and undivided interests in the successions of the interdict’s parents.

Given these circumstances, it is clear that fees of $3,348.10 to the notary and $1,674.05 to the appraisers in this ease were excessive for the minimal amount of work done. The inventory contained only seven items, the values of which were not determined or confirmed by the notary or appraisers. The notary and appraisers merely reviewed the inventory document supplied them by the curator’s attorney and signed and notarized it. Accordingly, we consider that a fee of $400 for the notary and $100 for each appraiser is reasonable compensation for the services rendered.

DECREE

For the reasons assigned, the judgment of the court of appeal is amended to reduce the fee awarded to the notary to $400 and to reduce the fee awarded to each appraiser to $100, and, as amended, the judgment is affirmed. All costs of this appeal are assessed to the notary and appraisers.

      . La.R.S. 9:1423 provides:
      The fees allowed to experts, notary publics and appraisers appointed to assist in taking inventories of successions, tutorships, inter-dictions, and other proceedings requiring the taking of inventories, shall be fixed by the court appointing such experts, notary publics and appraisers, and shall be taxed as costs in those proceedings in which the taking of an inventory is required.

      . Rule 13, § 8, Civil Rules of the Twenty-Fourth Judicial District Court, provides:
      In any case in which an inventory is requested, the notary filing said inventory shall be paid 2% of the total value of the inventory; the appraisers shall each be paid ⅛ of 1% of the total value of the inventory.

      . 434 So.2d 129 (La.App. 5th Cir.1983).

      . 435 So.2d 453 (La.1983).

      . The trial judge in Tutorship of Perret did grant fees in the amount set by the rule, but he found that such fees were reasonable for the amount of work done. Those fees were lowered by the court of appeal and further reduced by this court.


author: BLANCHE, Justice.

text:
    In the Matter of the SUCCESSION OF Melvin L. AUGUSTUS.
    No. 83-C-1001.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    See also La.App., 400 So.2d 1172.
    Walton J. Barnes, Baton Rouge, for applicant.
    Dennis R. Whalen, Baton Rouge, for respondent.
   BLANCHE, Justice.

This court granted writs to consider the correctness of a Court of Appeal ruling, 431 So.2d 73 (La.App. 1st Cir.1983), that a will confected by decedent, Melvin Augustus on March 10,1978, in the District of Columbia, was invalid for failure to comply with statutory form.

The will in question was offered for probate by decedent’s daughter, Mrs. Lillian Thompson. Decedent executed the will before a notary and two witnesses, during a 1978 visit to Washington, D.C. By the terms of this will, decedent specifically revoked a prior testament made in Louisiana in 1967. The testament consisted of one typewritten page, at the end of which the following statement appeared:

“In the presence of the undersigned notary, witnesses (sic) this will has been prepared under my direction and is now signed by me.”

Immediately below this clause followed the signatures of decedent, the notary, and two witnesses.

Appellee-opponent of the will objected that the testament was null, for the reason that it failed to contain an attestation clause in conformity with either Louisiana or District of Columbia statutory law.

Both the trial court and the Court of Appeal found the second will to be invalid. In holding that the testament did not contain a proper attestation clause, the Court of Appeal observed that the will failed to recite that the witnesses attested and signed the will in the presence of the testator. According to the court, such a recitation was required by D.C.Code Ann. § 18-103 (1965), which provides for statutory wills in the District of Columbia.

On the date the case came up for argument, counsel for opponent-respondent conceded that the will was not invalid for failure to comply with the formalities prescribed for the execution of wills under the laws of the District of Columbia. At the same time, counsel filed a motion to remand the matter to the trial court on the grounds that he had recently obtained information that the notary who prepared the will was not a notary in the District of Columbia at the time the will was prepared. A certification of the Assistant Secretary of the District of Columbia and Custodian of Records of Notarial Commissions attached to the motion facially supports this allegation which, if proved, would justify a judgment declaring the will invalid.

The concession amounts to a judicial confession by respondent that the original grounds for contesting the will are without merit, and an acknowledgment that both lower courts were in error. However, we do not choose to reverse the lower courts solely on the basis of respondent’s admission. Our own examination, however, convinces us that the Court of Appeal’s decision should be reversed, and we do so with this brief explanation.

The pertinent section of the D.C. Code, Annotated, provides:

A will or testament ... is void unless it is:
(2) attested and subscribed in the presence of the testator, by at least two credible witnesses.

D.C.Code Ann. § 18-103 (1965). Unlike Louisiana’s statutory will, La.R.S. 9:2442, which requires a specific recitation in the attestation clause that the testator and the witnesses signed in one another’s presence, the D.C.Code simply requires that the above described procedure be followed. What language is necessary in lieu of a specific recitation to demonstrate compliance with this procedure is not clear from a reading of the statute. As a general rule, where no specific form of attestation is required, any form of signing which shows that it is done with the intention of acting as a witness is sufficient. Page on Wills, Bowe-Parker Revision, Yol. 2, § 19:140. Under District of Columbia jurisprudence, it appears that the absence of a detailed attestation clause is not critical to a will’s validity. In Clark v. Turner, 183 F.2d 141, 142 (D.C.Cir.1950), the Court of Appeal stated 'that the failure to contain an attestation clause would not render an otherwise valid will invalid. The Supreme Court dealt with the problem of attestation clauses in Keely v. Moore, 196 U.S. 38, 25 S.Ct. 169, 49 L.Ed. 376 (1904). In that case, the Court upheld a will containing a separate attestation clause, while observing that “no particular form of attestation was necessary”, 196 U.S. at 42-48, 25 S.Ct. at 170-171.

Considering these holdings, and the less stringent approach towards attestation clauses which they embody, we have no hesitation in finding the attestation in the present case sufficient. The signatures of the witnesses came directly below the statement that the will was prepared and signed before witnesses. Their signatures evidence compliance with the statutory formalities expressed in D.C.Code § 18-103 cited hereinabove. Although not specifically stated, the fact that the witnesses signed in the presence of the testator may be reasonably implied from the witnesses’ presence at the signing, and their signatures directly below those of the testator and notary.

Because we find that decedent’s will conformed to District of Columbia law with respect to attestation, we must reverse the judgment of the Court of Appeal and find the will is not invalid on these alleged grounds.

We now address the motion to remand filed by counsel for appellee-opponents just prior to the time the case was called for argument.

The showing made by counsel in support of the motion is in our view the assertion of a new cause of action to declare the will a nullity. The strength of appellee-oppo-nent’s showing concerning the notary’s qualifications at the time the will was prepared leaves little doubt that, on dismissal of this suit, appellee-opponent may claim against the same party in another suit, identical relief sought here, albeit on different grounds. Available to defendant-appellant in such an event, would be any and all defenses to this new cause of action as though the suit had been filed anew.

Therefore in the interest of judicial economy; i.e. the saving of both time and costs which would attend the filing of a new suit, acting under the authority of our plenary grant of jurisdiction, we remand this case to the trial court for consideration of the qualifications of the notary who prepared the decedent’s will as though the issue was presented to it in a new suit.

REVERSED AND REMANDED.

       Bailes, J. sitting for Justice Marcus.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Robert Louis LYNCH.
    No. 82-KA-0859.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis,

      Dist. Atty., Herman Lawson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Ted Brett Brunson, Many, for defendant-appellant.
   WATSON, Justice.

In this appeal, defendant contends that the trial court erred in finding him to be a second felony offender, because he was not fully advised of his Boykin rights at the time of his first felony plea bargain. State v. Lewis, 367 So.2d 1155 (La., 1979).

Defendant, Robert Louis Lynch, was convicted by a jury of simple burglary of an inhabited dwelling in violation of LSA-R.S. 14:62.2. Defendant was then charged with being an habitual offender in violation of LSA-R.S. 15:529.1 because he had pleaded guilty to forgery on December 13, 1979. Defendant was convicted of being an habitual offender and sentenced to twelve years at hard labor, the first year without benefit of parole, probation or suspension of sentence.

The minute entry in connection with the prior guilty plea recited the following:

“Before acceptint (sic) the plea of guilty to Forgery, the court inquired of the defendant if he understood that by entering this plea he was waiving his right to trial by jury, waiving his rights against compulsory self-incrimination and waiving the right to be confronted by the witnesses against him. The defendant replied affirmatively. The Dsitrict (sic) Attorney made a statement of the facts and the defendant confirmed their correctness to the charge to which he was pleading and the mandatory penalty therefor and whether the plea of guilty to Forgery was freely and voluntarily made. The defendant again replied affirmatively. Whereupon, the Court accepted the plea of guilty to Forgery and ordered the plea recorded in the minutes of the court.” (S — 3)

Defense counsel objected to the introduction of the minute entry on the ground that it did not affirmatively show the plea was knowingly and intelligently made. The state then called defendant’s prior attorney of record to testify. According to that attorney’s recollection, his client had entered into a plea bargain in which he pled guilty to four counts of forgery, received a suspended sentence and was placed on probation. “It would have been my practice to advise him of his right to trial, and that he had the right to cross-examination, et cet-era. I am not saying that I personally remember all of this, because I don’t personally remember it.... I feel sure that I would have advised him.” (Tr. 10)

The trial court ruled that the attorney’s testimony did not substantiate or detract from the recitation in the minutes and accepted the minute entry into evidence over defendant’s objection. At the time of this ruling, the prosecutor had already asked that the transcript of the prior proceedings be filed into the record.

In the prior transcript, Lynch’s attorney recites:

“he understands that he has a right to a trial by Jury and he is giving that up by pleading guilty, and he understands that he has a right to confront the witnesses and he is giving this up, and any other rights. Is that right, Robert?
“THE DEFENDANT: Yes, sir.
“MR. BURKETT: And you understand that nobody has promised you anything.
“THE DEFENDANT: Yes, sir.
“THE COURT: You have made him aware of what he is charged with.
“MR. BURKETT: I have told him that he is charged with Forgery and that it carries a maximum of ten years, I believe.
“THE COURT: Do you have any questions about what you are doing, Robert, I mean you understand it all?
“THE DEFENDANT: Yes, sir.
“THE COURT: Alright, let the record reflect that the Court finds that the accused has voluntarily, intelligently, withdrawn his former plea of not guilty and entered a plea of guilty which plea is accepted by the Court at this time.” (Tr. 2-3)

In State v. Bland, 419 So.2d 1227 (La., 1982), defendant objected to a minute entry as sufficient proof that he had waived his rights. Bland held: “the state may affirmatively prove that the defendant had the benefit of counsel and that he was fully Boykinized by either the transcript of the plea of guilty or by the minute entry.” 419 So.2d at 1232.

The minute entry here is contradicted by the transcript, which was introduced in evidence with the prosecutor’s consent before the court concluded that the minute entry did not require corroboration. Since there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Godejohn, 425 So.2d 750 (La., 1983). From the transcript it is apparent that defendant was not advised of his right to remain silent; therefore, his conviction cannot be used for enhancement. State v. Lewis, supra. The defendant’s conviction as an habitual offender and his sentence are reversed and vacated and the matter is remanded for resentencing.

CONVICTION AS HABITUAL OFFENDER REVERSED; SENTENCE VACATED; REMANDED.

LEMMON, J., dissents.

BLANCHE, J., concurs and will assign reasons.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).