author: DELL, Judge.

text:
    Barbara PERLMAN, Appellant, v. Jerry PERLMAN, Appellee.
    Nos. 83-1240, 83-1471.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.

      Marvin Littky, and Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant.
    Robert C. Furr and Leslie Gern Cloyd of Furr & Cohen, P.A., Boca Raton, for appel-lee.
   DELL, Judge.

Barbara Perlman appeals from the final order entered pursuant to her petition for modification of alimony and child support. Appellant challenges the amount of the increase in alimony; the amount of child support for one of the parties’ children; and the court’s failure to require appellee to pay all of her attorney’s fees.

We find no error in the amount of the increase in appellant’s alimony. We do disagree with the trial court’s refusal to increase child support for Marla, the parties’ daughter, and we disagree with the trial court’s award of only one-half of appellant’s attorney’s fees.

The trial court justified its refusal to increase Marla’s child support beyond the amount agreed to in the original property settlement agreement because she refused to visit with appellee. However, the trial court seemingly ignored the factors which compel reversal of this decision.

Appellee stipulated that he had the ability to pay increased support. Marla is sixteen years old, a junior in high school and because of the inadequacy of her support, finds it necessary to work twenty-five to thirty hours per week at K-Mart. Appellant testified that she could not support Marla on the amount that she had been receiving from appellee and appellee in fact admitted that Marla’s needs had increased. The trial judge stated that Marla needed more money but denied the request because of her alleged refusal to visit with appellee. The record reflects a disagreement as to whether Marla has refused to visit with appellee or whether she has refused to visit when his new wife is present. In addition to all of the foregoing facts, the parties agreed in a prior modification proceeding that “Both parties agreed the minor children shall have the sole discretion in the issue of visiting or not visiting with their father.” Since the parties agreed to give the children sole discretion regarding visitation, we find the facts of this case distinguishable from Tyrrell v. Tyrrell, 359 So.2d 62 (Fla. 1st DCA 1978) and Cortina v. Cortina, 108 So.2d 63 (Fla. 2d DCA 1958). Based on the foregoing facts, we hold the trial court improperly refused to increase Marla’s support above the amount of the original property settlement.

Next, the trial court ordered appel-lee to pay only one-half of appellant’s $3,390 in attorney’s fees. We hold that the trial court abused its discretion in failing to award appellant the full amount of her attorney’s fees based on the overwhelming disparity between the assets and income of the parties. Hudgens v. Hudgens, 411 So.2d 354 (Fla. 2d DCA 1982).

Therefore, we reverse and remand this cause with directions to the trial court to conduct such further hearing as may be necessary to determine and award a reasonable amount of child support for Marla and to amend the final judgment to provide for the wife to recover the full amount of the attorney’s fees she expended in this proceeding. We affirm the final judgment in all other respects.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

ANSTEAD, C.J., and DOWNEY, J., concur.

      . At the time of the hearing on modification, appellee admitted to earnings in excess of $170,-000 per year,


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Debra Jean MOSSMAN, Appellant, v. STAR JAG, INC., et al., Appellees.
    No. 83-1484.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    Daniel S. Simons of J. Jay Simons, P.A., Fort Lauderdale, for appellant.
    Robert D. Moses of Wiederhold, Moses & Bulfin, P.A., West Palm Beach, for appel-lee-Northeastern Ins. Co.
   PER CURIAM.

AFFIRMED. See Holland v. Gross, 89 So.2d 255 (Fla.1956); Davidson v. Florida National Bank of Miami, 412 So.2d 946 (Fla. 3d DCA 1982); Neimark v. Abramson, 403 So.2d 1057 (Fla. 3d DCA 1981); Oceanic International Corporation v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981.)

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.


text:
    Johnny Mac BROWN, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1492, 83-1493.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

There was a discrepancy between the oral pronouncements of sentences and the written sentences. We reverse the written sentences and remand for correction pursuant to Sirmons v. State, 405 So.2d 310 (Fla. 4th DCA 1981).

Reversed and Remanded.

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.


text:
    Robert W. HOWLETT, Appellant, v. Adele HOWLETT, Appellee.
    No. 83-1634.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    Ronald P. Gossett of Hodges, Gossett, McDonald & Gossett, P.A., Hollywood, for appellant.
    No appearance on behalf of appellee.
   PER CURIAM.

This is an appeal from a post-final judgment in a long, drawn-out divorce case. The controversy centers around a wooden desk. We have reviewed all points raised on appeal and hold that the costs and attorneys’ fees incurred as a result of the motion to compel discovery should be assessed against the nonparty witnesses who necessitated the motion. Florida Rule of Civil Procedure 1.380(a)(4). All other matters have been considered and found to be without merit.

REVERSED AND REMANDED.

LETTS, BERANEK and HERSEY, JJ„ concur.


author: PER CURIAM. LETTS, Judge,

text:
    UNION ELECTRIC CONSTRUCTION CORPORATION, Appellant, v. JANSEN COMPANY OF FLORIDA, INC., Appellee.
    No. 83-1818.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    Joseph A. Vassallo and Paul A. Sack of Vassallo & Pheterson, P.A., Palm Springs, for appellant.
    Lynn W. Hamrich of Shackleford, Farri- or, Stallings & Evans, P.A., Tampa, for appellee.
   PER CURIAM.

We treat this appeal as a petition for common law certiorari. Hansen v. Dean Witter Reynolds, Inc., 408 So.2d 658 (Fla. 3d DCA 1982). The order in question which granted the Motion to Compel Arbitration is quashed. The cause is remanded with instructions to conduct an evidentiary hearing after notice upon the Motion to Compel Arbitration filed by Jansen Company of Florida, Inc. Merrill Lynch, Pierce, Fenner & Smith v. Melamed, 425 So.2d 127 (Fla. 4th DCA 1982); Merrill Lynch, Pierce, Fenner & Smith v. Falowski, 425 So.2d 129 (Fla. 4th DCA 1982).

Certiorari granted.

HERSEY and WALDEN, JJ., concur.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting.

Based on the pleadings and affidavits in the file, the record unequivocally stands for the proposition that the appellant was the one who requested the judge to rule on the motion to arbitrate which it now insists the judge was in error for so doing.

Moreover this case concerns a $384,100 written contract out of which the appellant here wishes to excise $6,490. The record also demonstrates to my satisfaction that this latter de minimus sum, allegedly a totally separate oral contract, is in fact part and parcel of the whole.


text:
    GEDMAN CORPORATION and Gerald Devins, Appellants, v. Ann WEITZMAN, Appellee.
    No. 83-2081.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.

      Robert L. Sader of Tworoger, Sader & Ferrell, P.A., Fort Lauderdale, for appellants.
    Thomas R. Tatum of Tatum & Tatum, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

We reluctantly reverse the entry of summary judgment entered against the appellant Gedman Corporation in this action to quiet title to a parcel of real property.

Our reluctance is predicated partially upon the reflection in the record of obvious attempts by appellant Gerald Devins to fashion his testimony in various lawsuits to suit his interests as he apparently then perceived them. We believe the record supports the trial court’s entry of summary judgment against Devins.

On the other hand, we are unable to conclude on the basis of the record before us that the appellee Ann Weitzman has affirmatively demonstrated the lack of a genuine issue of material fact as to the claim of Gedman Corporation to title of the real property in interest. Despite the existence of substantial evidence in support of appellee Weitzman’s claim to the property, there is some evidence in the record suggesting that Gedman Corporation has claimed legal title to the property in question at all times material to this action and that the validity of its claim has never been properly litigated.

Accordingly, we affirm the trial court’s entry of summary judgment against the claim of appellant, Gerald Devins, but reverse the summary judgment entered against appellant Gedman Corporation and remand for further proceedings consistent herewith.

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


text:
    The VILLAGE ZOO, INC., d/b/a Village Zoo, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 83-2262.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.

      William F. Beggs of Beggs & Vecchio, Fort Lauderdale, for appellant.
    Louisa E. Hargrett, Tallahassee, for ap-pellee.
   PER CURIAM.

We believe the appellee Division erred in setting aside the hearing examiner’s factual determination that a proposed corporate officer of appellant’s corporation was of good moral character. The hearing officer’s resolution of this issue in favor of appellant required the hearing officer to evaluate and resolve the conflicting inferences that arose from the evidence of the proposed corporate officer’s actions as an employee of the appellant corporation. Since the evidence presented supported the inferences and conclusion drawn by the hearing examiner, we believe the Division overstepped its authority in substituting its own evaluation of the evidence for that of the hearing examiner. Wash & Dry Vending Co. v. State Dept. of Business Regulation, 429 So.2d 790 (Fla. 3d DCA 1983).

Accordingly, we reverse the order entered below and remand this cause with directions that an order be entered consistent with the hearing examiner’s findings.

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. Gerald Robert PUGH, Appellee.
    No. 84-210.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Frank B. Kessler of Zwickel, Gross & Kessler, Lake Worth, and Louis M. Silber of Pariente & Silber, P.A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Bender v. State, 382 So.2d 697 (Fla.1980); State v. Roose, 450 So.2d 861 (Fla. 3d DCA 1984).

HERSEY, WALDEN and DELL, JJ., concur.


text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver/liquidator of the Bank of Lake Helen, Appellant, v. CIRCLE BAR RANCH, INC., a dissolved Florida corporation, et al., Appellees.
    No. 83-1013.
    District Court of Appeal of Florida, Fifth District.
    June 7, 1984.

      Anne C. Conway and Thomas D. Scanlon of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for appellant.
    No appearance for appellees.
   PER CURIAM.

Appellant appeals from a judgment awarding a deficiency decree in an amount less than the amount claimed by appellant. We reverse and remand for entry of judgment awarding a deficiency for the total amount claimed.

The final judgment of foreclosure adjudicated that appellant/mortgagee was entitled to $1,026,110.10 for principal, interest, and costs. At the judicial sale held pursuant to court order under section 45.031, Florida Statutes, (1981), the security property was sold to a third party for $520,200 cash. Appellant moved for entry of a deficiency judgment for $640,457.81 representing the amount of the final judgment, plus further accrued interest and costs, less the sale proceeds. The mortgagor presented an appraisal made four months before the foreclosure sale which valued the mortgaged property at $1,360,000 and argued that the security property was worth much more than it brought at the sale. The trial court entered a deficiency judgment for $229,800, the difference between the original principal amount of the mortgage ($750,000) and the sale proceeds ($520,200).

When a mortgage secures the outstanding principal indebtedness together with all interest and costs and the judicial foreclosure sale is insufficient to cover all such sums, the mortgagee is entitled to a deficiency judgment for the balance due. To limit the mortgagor’s liability and the deficiency to the principal sum deprives the contracting party of the benefit of a lawful contract. See Flagship Bank of Orlando v. Bryan, 384 So.2d 1323 (Fla. 5th DCA 1980); Larsen v. Allocca, 187 So.2d 903 (Fla. 3d DCA), cert. denied, 195 So.2d 566 (Fla.1966). Under the facts here, and where there is no fraud or interference by the mortgagee with the foreclosure sale nor any legal error in the clerk’s conduct of the sale, the mere difference between the foreclosure sale price and the “market value” of the property does not justify denial of a deficiency judgment for the balance of all sums due. See Flagship State Bank of Jacksonville v. Drew Equipment Company, 392 So.2d 609 (Fla. 5th DCA 1981).

REVERSED and REMANDED.

DAUKSCH, FRANK D. UPCHURCH and COWART, JJ., concur.


text:
    Richard Louis WEINBERG, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-1333.
    District Court of Appeal of Florida, Fifth District.
    June 7, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

See Maselli v. State, 446 So.2d 1079 (Fla.1984).

AFFIRMED.

COBB, FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


text:
    Eileen DOMBROFF, Personal Representative of the Estate and Survivors of Stanley Dombroff, Deceased, Appellant, v. EAGLE-PICHER INDUSTRIES, INC., Appellee.
    No. 83-2276.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Baron & Associates and Jane N. Saginaw, Dallas, Tex., Louis S. Robles, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael K. McLe-more, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The final summary judgment under review is reversed and the cause is remanded for further proceedings upon a holding that: (1) the trial court acquired personal jurisdiction over the defendant corporation herein under Section 48.081(3), Florida Statutes (1981), because: (a) the said corporate defendant was qualified to do business in Florida, and (b) the corporate defendant’s designated resident agent was served in Dade County, Florida; Cassidy v. Ice Queen International, Inc., 390 So.2d 465 (Fla.3d DCA 1980); Junction Bit & Tool Co. v. Institutional Mortgage Co., 240 So.2d 879 (Fla. 4th DCA 1970); (2) this result is not changed by the fact that the cause of action sued upon: (a) does not arise from business activities conducted by the defendant corporation in Florida, Confederation of Canada Life Insurance Co. v. Vega y Arminan, 144 So.2d 805 (Fla.1962); Killingsworth v. Montgomery Ward & Co., 327 So.2d 50 (Fla.2d DCA 1976); Crown Colony Club, Ltd. v. Honecker, 307 So.2d 889, 891 (Fla.3d DCA), cert. denied, 320 So.2d 392 (Fla.1975); Junction Bit & Tool Co. v. Institutional Mortgage Co., supra at 881, and (b) arises from the defendant’s business activities in the state of Maryland prior to designating its resident agent in Florida, although accruing for statute of limitations purposes subsequent thereto; see Confederation of Canada Life Insurance Co. v. Vega y Arminan, supra; Copeland v. Armstrong Cork Co., 447 So.2d 923, 924 (Fla.3d DCA 1984); Brown v. Armstrong World Industries, 441 So.2d 1098 (Fla.3d DCA 1983), and (3) for purposes of this case, we assume without deciding that the issue of personal jurisdiction over the defendant corporation herein was properly before the trial court for a ruling on the merits; but cf. Miller v. Marriner, 403 So.2d 472 (Fla. 5th DCA 1981).

Reversed and remanded.


text:
    Michael Tyrone PARSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-638.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions and, except as hereinafter specifically provided, the sentences.

Retention of jurisdiction over one-half of each of several consecutive sentences is improper. Retention, where otherwise justified, may be retained over one-half of the total consecutive sentences imposed. § 947.16(3), Fla.Stat. (1982 Supp.); Goree v. State, 411 So.2d 1352 (Fla. 3d DCA 1982).

Imposition of consecutive three-year mandatory minimum sentences for multiple offenses arising out of the same criminal episode is similarly impermissible. Palmer v. State, 438 So.2d 1 (Fla.1983); Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984).

Imposition of costs without adequate notice and an opportunity to be heard violates due process requirements. Jenkins v. State, 444 So.2d 947 (Fla.1984).

We therefore remand this cause for correction of sentences and for such further proceedings, including hearing on costs, as may be appropriate.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.


text:
    Gary D. DiBARTOLOMEO, Appellant, v. STATE of Florida, Appellee.
    No. 82-575.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.

      Richard L. Jorandby, Public Defender, and Barbara A. White, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Gary DiBartolomeo was convicted of burglary of a conveyance and sentenced to five years imprisonment. We reverse because the trial court compelled the defendant to proceed pro se at his trial without first making an adequate inquiry into his financial ability to retain private counsel. Apparently the trial judge felt that DiBartolomeo was not entitled to a court-appointed attorney in view of his failure to submit an affidavit of indigency with the public defender’s office as previously instructed by the court at two prior appearances. A denial of court-appointed counsel may not rest on such a basis, however. The trial court had a duty to make a full inquiry into the defendant’s financial circumstances, considering such factors as the accused’s weekly income and number of dependents, the probable expense and burden of defending the case, and the amount of debts owed by the defendant, or debts that might be incurred because of illness or other misfortunes within his family. Enrique v. State, 408 So.2d 635 (Fla.3d DCA 1981), pet. for review denied, 418 So.2d 1280 (Fla.1982); § 27.52(2)(c), Fla.Stat. (1983). The record in this case does not show that such an inquiry was made at any stage of the proceeding. Moreover, the trial court did not inquire on the record into DiBartolomeo’s ability to make an intelligent decision to waive counsel, as required by Florida Rule of Criminal Procedure 3.111(d), nor did it advise him of the dangers and disadvantages of self-representation. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Keene v. State, 420 So.2d 908 (Fla. 1st DCA 1982); Drago v. State, 415 So.2d 874 (Fla. 2d DCA 1982). Therefore, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HERSEY and HURLEY, JJ., concur.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting.

This defendant was repeatedly instructed by the court to fill out the required affidavit. There is no suggestion he did not understand. In short, he played games with the trial judge and I would not have him win. It is obvious from the record he had no way of retaining private counsel.


text:
    Kevin HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-2344.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.

      Richard F. Rendina, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Harvey appeals from an order revoking his probation and sentencing him to three years in state prison. He contends that he was entitled to be sentenced under Florida’s new sentencing guidelines, Florida Rule of Criminal Procedure 3.701. We agree and reverse.

Harvey originally pled guilty to a charge of grand theft and received three years probation. In June of 1983, he was charged with violating the terms of his probation. He admitted to the violation and was sentenced to three years imprisonment on October 18, 1983.

At the probation revocation hearing Harvey affirmatively requested to be sentenced under the guidelines set forth in Florida Rule of Criminal Procedure 3.701. The trial judge verbally denied the request, citing the following grounds as reasons for his departure from the guidelines:

(1) a 1972 juvenile arrest for breaking and entering;
(2) a 1972 juvenile arrest for petit larceny;
(3) a 1975 juvenile arrest for buying and concealing stolen property;
(4) a 1975 juvenile arrest for possession of stolen property and breaking and entering with intent to commit grand larceny;
(5) a 1980 conviction for having an unsecured tag and vehicle inspection;
(6) a 1981 fine for disobeying a stop sign;
(7) a 1982 fine for racing on the highway.

In view of that criminal history, the trial court concluded, “He violated the Court’s confidence and he’s a thief and I make that finding, and those are the grounds that I go outside of the guidelines.”

As a preliminary matter, we observe that the trial court failed to provide a written statement providing the reasons for the departure as required by Florida Rule of Criminal Procedure 3.701(d)(ll). However, we do not reverse on that basis because the trial court’s reasons were in fact transcribed as part of the record. We believe that oral explanation in the record sufficiently provides the opportunity for meaningful appellate review for purposes of Florida Rule of Criminal Procedure 3.701. Cf. Cave v. State, 445 So.2d 341 (Fla.1984); Thompson v. State, 328 So.2d 1 (Fla.1976).

Turning to the merits, we hold that the trial court erred by departing from the guidelines because the proffered justification does not amount to a “clear and convincing reason” which warrants aggravating the sentence for purposes of Rule 3.701(d)(ll). The state concedes that none of the items listed in appellant’s history could properly be considered as “prior record” in the computation of a scoresheet under Rule 3.701. See Rule 3.701(d)(5)(a)(l), (4) and (d)(5)(c). We hold that past criminal conduct which cannot be considered in computing the scoresheet cannot be relied upon as justification for departure from the guidelines. Indeed, reliance on the first four items cited by the trial court as a basis for departure is clearly proscribed by Rule 3.701(11), which provides in pertinent part that “Reasons for departing from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.” (emphasis added). Consequently, we vacate the sentence and remand this case to the trial court for resentencing under the guidelines.

REVERSED AND REMANDED.

DOWNEY, BERANEK and HURLEY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Joseph A. SOLLECITO, Appellant, v. HOLLYWOOD LINCOLN MERCURY, INC., and Unemployment Appeals Commission, Appellees.
    No. 83-2371.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Joseph A. Sollecito, pro se appellant.

      James D. Adams of Quinton, Lummus, Dunwody & Adams, P.A., Miami, for appel-lee-Hollywood Lincoln Mercury, Inc.
    Geri Atkinson-Hazelton, Tallahassee, for appellee-Unemployment Appeals Com’n.
   GLICKSTEIN, Judge.

This is an appeal by a claimant from an adverse final order entered by the Unemployment Appeals Commission. We affirm.

Claimant sought employment with Hollywood Lincoln Mercury, Inc., and was hired for the position of parts driver. At the time of hiring, he was told that he would have duties other than picking up and delivering parts, including sweeping shop areas, dusting storage bins, and emptying trash. Claimant worked for less than a month, then complained that he was spending too much time on the housekeeping and that his work area was too hot. The employer offered him the chance to resign, and claimant did so.

Upon his filing for unemployment compensation, the claims examiner found him disqualified for benefits on the basis that he had voluntarily left his employment without good cause attributable to his employer. On appeal, the appeals referee affirmed the examiner’s determination, finding that claimant was aware of the other duties when he was hired. The Unemployment Appeals Commission upheld this decision, and claimant now appeals to this court. The issue is whether there is competent, substantial evidence in the record and a reasonable basis in the law to support the findings and conclusions of the appeals referee, adopted by the Unemployment Appeals Commission, that the claimant voluntarily left his employment without good cause attributable to the employer within the meaning of Section 443.101(1), Florida Statutes (1983).

As appellee notes, administrative agency action and findings will not be disturbed upon appeal where the findings of fact are supported by (Competent, substantial evidence and the legal conclusions based thereon are accurate. E.g., Perez v. State, Department of Labor and Employment Security, Appeals Commission, 377 So.2d 806 (Fla. 3d DCA 1979). The appeals referee found that claimant was aware at the time of his hiring of the duties, other than parts deliveries, that he would be required to perform. This conclusion was well supported by the testimony in the case, including claimant’s own admission. The referee found that claimant’s resignation resulted from his decision that these duties were taking too much of his time and that the work area was too hot. Although claimant says that heat “can affect” the health of those having the pulmonary disease to which he was subject, he never claimed that it was affecting his health. To the contrary, he admitted that there was no medical opinion that he would be harming his health by working under the conditions of which he complains. The fact findings are therefore suitably grounded in the evidence.

The legal question is whether an employee’s leaving his employment because of his judgment that too much of his time is spent on the wrong activities and because he feels that it is too hot constitute good cause attributable to this employer. While Florida cases have considered neither of these points, the conclusion in other states with similar unemployment compensation statutes has uniformly been that neither is good cause.

The Michigan statute provides for benefits where the employee has left employment for good cause attributable to the employer. In Cooper v. University of Michigan, 100 Mich.App. 99, 298 N.W.2d 677 (1980), the Michigan court found that an employee who left due to an insufficient quantity of work had not left for “good cause attributable to her employer.” Similarly, a Pennsylvania court held that an employee who left his job because he was not permitted to do the work for which he was hired voluntarily left his employment without good cause, Sabloff v. Unemployment Compensation Board of Review, 194 Pa.Super. 63, 166 A.2d 95 (1960). Therefore, where the employee was aware from the beginning that his work would involve housekeeping duties, the fact that he decided that he was doing too much of it did not constitute good cause.

On the point of the heat, this issue was directly addressed by the Pennsylvania court in Ray v. Unemployment Compensation Board of Review, 189 Pa.Super. 104, 149 A.2d 536 (1959). In Ray, the claimant quit because she was to be transferred to the kitchen, which she claimed was too hot. Although she claimed the heat was deleterious to her health, she offered no proof thereof, and the court held this not to be good cause for voluntary termination of employment. The Indiana unemployment compensation statute disqualifies for benefits employees who leave work voluntarily without good cause. An Indiana court found such a disqualification in Marozsan v. Review Board of the Indiana Employment Security Division, Ind. App., 429 N.E.2d 986 (1982), in which it held that employees are not entitled to terminate employment because working conditions are not to their liking. Employees may only leave because of working conditions where the conditions constitute unfair or unreasonable demands upon a claimant such that a reasonably prudent person would leave. Two New Jersey courts have ruled that mere dissatisfaction with working conditions which are not demonstrated to be abnormal or to affect employees’ health does not constitute “good cause” for leaving work under unemployment compensation statutes. Associated Utility Services, Inc. v. Board of Review, Department of Labor & Industry, 131 N.J.Super. 584, 331 A.2d 39 (1974); Medwick v. Board of Review, Division of Employment Security, Department of Labor & Industry, 69 N.J. Super. 338, 174 A.2d 251 (1961).

Under the foregoing precedents, it is clear that claimant did not have good cause attributable to his employer for resigning. The appeals referee was correct in his conclusions of both law and fact as was the commission in affirming.

HERSEY and WALDEN, JJ., concur.


author: OTT, Chief Judge.

text:
    J. Chesney CARSON, Appellant, v. Cheryl LEE and Richard Allen Lee, Appellees.
    No. 83-2044.
    District Court of Appeal of Florida, Second District.
    June 13, 1984.

      Elizabeth Anne Goodale, Largo, for appellant.
    Sarah Clark Johnson, St. Petersburg, for appellees.
   OTT, Chief Judge.

This appeal raises the question of whether appellant, defendant below, was afforded proper notice of appellees’ application for default prior to entry of the default and final default judgment. We hold that the notice appellant received was insufficient. Consequently, the default and default final judgment are vacated.

Appellees filed a three-count complaint against appellant. Following service of process, appellant filed a motion to dismiss. The motion was denied, and appellant was given until May 24, 1983, a period of twenty days, to file his answer. No answer or other pleading was filed. On July 27, 1983, appellees filed their motion for default. A notice of hearing on appellees’ motion for default was dated July 26, 1983, and mailed to appellant notifying him of a hearing on the motion scheduled for July 28, 1983. Upon appellees’ ex parte application, the trial court signed an order of default which bears the date July 27, 1983.

Appellant filed answer, affirmative defenses, and counterclaim on August 3, 1983. He also filed a motion to set aside, alleging he had not received the notice of hearing until July 29, 1983. The motion was denied, and a default final judgment was rendered September 7, 1983.

Florida Rule of Civil Procedure 1.500(b) provides that if a party files any paper in an action he must be served with notice of any application for default. Appellant was entitled to notice because of his motion to dismiss and the pleadings which followed. The notice required by rule 1.500(b) would be meaningless unless given in sufficient time to permit some action to be taken after its receipt. Cohen v. Barnett Bank of South Florida, N.A., 433 So.2d 1354, 1355 (Fla.3d DCA 1983). Not only did appellees fail to comply with rule 1.500(b), they also ignored Florida Rule of Civil Procedure 1.090(e), requiring five days to be added to the time for taking action when service is made by mail. Id. Because appellant did not receive notice until after the default was signed, the default and resultant judgment must be set aside. See Kiaer v. Friendship, Inc., 376 So.2d 919 (Fla.3d DCA 1979). Therefore, appellant’s answer, affirmative defenses, and counterclaim were timely filed.

The default and final default judgment are VACATED, and this cause is REMANDED for further proceedings.

CAMPBELL and SCHOONOVER, JJ„ concur.


author: SCHWARTZ, Chief Judge.

text:
    STATE of Florida, Petitioner, v. Stephen R. PALMER, Respondent.
    No. 84-1124.
    District Court of Appeal of Florida, Third District.
    June 18, 1984.

      Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for petitioner.
    Hitchcock & Cunningham and Bo Hitchcock, Fort Lauderdale, for respondent.
    Before SCHWARTZ, C.J., HUBBART, J., and SHARP, WINIFRED J., Associate Judge.
   SCHWARTZ, Chief Judge.

The respondent Palmer pled nolo conten-dere to a charge of drug trafficking, reserving the right to appeal from his conviction on the ground that his motion to suppress had been erroneously denied. The trial court admitted him to bond pending appeal, holding that Sec. 903.133, Fla.Stat. (1983), which precludes such relief in a trafficking case, was unconstitutional as applied to Palmer, on the ground that he was a good bail risk and was raising a substantial point on appeal.

The order is quashed on the authority of Echeverria v. State, 411 So.2d 357 (Fla.3d DCA 1982), adopting Hart v. State, 405 So.2d 1048 (Fla. 4th DCA 1981), cert. denied, 415 So.2d 1359 (Fla.1982). Echever-ría and Hart establish the validity of the statute’s absolute prohibition of an appeal bond in these cases. It follows that the particular surrounding circumstances, which might otherwise invoke the court’s discretion to grant a bond, are totally immaterial. In sum, particularly since there is no constitutional right to bond pending appeal in the first place, Greene v. State, 238 So.2d 296 (Fla.1970); Roberson v. State of Connecticut, 501 F.2d 305 (2d Cir.1974), a statute which constitutionally denies bond in every such instance simply and logically cannot be unconstitutional “as applied” to an individual one.

Certiorari granted.

      . 903.133. Bail on appeal; prohibited for certain drug convictions.—
      Notwithstanding the provisions of s. 903.132, no person adjudged guilty of a first-degree felony for a violation of s. 893.13 or s. 893.135 shall be admitted to bail pending appellate review.

      . The time for filing a motion for rehearing is reduced to three days from the date hereof.


author: DIXON, Chief Justice. BLANCHE, Justice

text:
    TITLE RESEARCH CORPORATION et al. v. Lucy Reid RAUSCH, Clerk of Court, St. Tammany Parish, Louisiana.
    No. 83-C-1683.
    Supreme Court of Louisiana.
    April 2, 1984.

      Robert C. Brandt, Williams & Brandt, Slidell, La., George R. Blue, Sr., Blue, Williams & Buckley, Metairie, for plaintiff-applicant.
    Thomas S. Derveloy, Jr., Jones, Fussell, Derveloy & Schoen, Covington, for defendant-appellee.
   DIXON, Chief Justice.

Pursuant to an agreement, Title Research Corporation and Karl Heeter, plaintiffs, were allowed to microfilm the newly filed, original and unbound conveyance and mortgage records of St. Tammany Parish. After nine months, the agreement with the Clerk of Court, Lucy Reid Rausch, defendant, broke down. As a result, plaintiffs filed this suit, seeking a writ of mandamus to compel the clerk to allow them to microfilm the original, unbound conveyance and mortgage records which are in the clerk’s custody. The trial court ruled that plaintiffs did not have the asserted right of access to the records. The court of appeal affirmed (433 So.2d 1105 (La.App.1983)). Writs were granted, 440 So.2d 146 (La. 1983), to determine the scope of the rights guaranteed to members of the public under the public records laws of the state. We reverse the decision of the court of appeal.

The parties entered into a stipulation concerning the facts; there is no factual dispute.

Title Research Corporation is a Louisiana corporation engaged in the business of investigating titles to immovable property; Karl Heeter is its president. Lucy Rausch is the Clerk of Court for St. Tammany Parish, and, as such, the recorder of the conveyance and mortgage records of the parish.

To facilitate its investigations, Title Research sought to microfilm all of the recently filed conveyance and mortgage records for the parish. In 1979 Mr. Heeter approached the clerk, requesting permission to microfilm the records. To this request, the clerk suggested that Title Research obtain copies of the microfilm which the clerk’s office had already prepared. Title Research thereafter purchased nearly two thousand dollars worth of the microfilm from Southern Microfilm. The purchased microfilm, however, did not satisfy Title Research’s needs. In March, 1980, Mr. Heeter met with the clerk to discuss the possibility of setting up his own microfilm camera in the clerk’s office, in order to reproduce the original, unbound records. At the clerk’s suggestion, Mr. Heeter made a written request to begin his microfilming. By return letter, the clerk denied Mr. Heeter’s request, stating that her office did not have sufficient room to accommodate the microfilm machine, even though the machine was only two by three feet, just larger than a typewriter. In February, 1981, Mr. Heeter confirmed by letter a telephone conversation he had with the clerk’s attorney. He repeated his request to microfilm the records, and stated that the microfilming could be done in one session per week, and after normal business hours. The parties met again, and, after some more correspondence, entered into a written agreement.

According to the agreement, Title Research was allowed to bring its microfilm equipment to the courthouse once per week, from 5:00 until 7:30 p.m. Title Research would be permitted to copy only those original conveyance and mortgage records which already had been microfilmed and indexed by the clerk’s staff, but which had not yet been bound permanently. The microfilming was to be supervised by a member of the clerk’s staff, whose salary of twenty-five dollars per session would be paid by Title Research, four weeks salary payable in advance. In return, Title Research would furnish a copy of the microfilm to the clerk, charging the clerk only for the costs of reproduction. Additionally, Title Research was required to execute an indemnity agreement which would hold the clerk harmless in connection with any cause of action which might arise as a result of Title Research’s use of its microfilm.

Title Research began its microfilming immediately after the agreement had been reached. In August, 1981, Mrs. Rausch expressed some concern over finding some of her original, unbound records out of order. To this concern, Title Research responded in writing that it returned the records in better condition than they had been received. In the same month, some of the original documents were bound before Title Research had an opportunity to microfilm them. A letter was sent to the clerk by Title Research asking that it be notified in advance of any planned pickups by the binder. Title Research also requested that the twenty-five dollar per session fee be dropped. Mrs. Rausch, through her attorney, declined to drop the fee. Again, in November, a large group of records were bound before Title Research had an opportunity to microfilm them.

To fill the gaps left by the unannounced bindings, Title Research leased a special microfilm machine which would allow it to copy the permanently bound volumes of the records. On December 2, 1981, at 9:30 a.m., Mr. Heeter went to the courthouse with the special equipment. The clerk and her attorney objected to Mr. Heeter, saying that it was not agreed that Title Research would be allowed to microfilm during normal business hours. On that same day, the clerk filed suit for an injunction against Title Research, seeking to have the company enjoined from copying any more of the records. By consent of the parties, the proceedings were continued until January, 1982. The clerk also converted the action from an injunction proceeding to an ordinary proceeding.

During the interim, Title Research was allowed to continue its filming operations, and the parties negotiated in an attempt to reach an amicable resolution of their disagreements. As a result of the meetings, Title Research submitted a proposal which suggested various alternate locations for the camera, as well as offering to purchase some of the construction material needed to fulfill some of the suggestions. On January 22, 1982, the proposal was rejected by the clerk, and the clerk, further, formally notified Title Research, in writing, that it no longer would be permitted to microfilm the original, unbound records. In response to the prohibition, by letter dated January 26, 1982, Title Research’s counsel made formal demand on the clerk to provide copying access to specified records. The clerk responded that the records would be available for inspection only, and that plain paper copies of the records could be purchased from the clerk at the rate of fifty cents per page. Title Research informed the clerk that the plain paper copies would not satisfy its needs, and that it was its opinion that the clerk’s response did not conform with the public records law. On February 9, 1982, Title Research and its president, individually, filed answers and reconventional demands to the clerk’s lawsuit, and also filed the present action for a writ of mandamus, pursuant to C.C.P. 251; R.S. 44:35(A), ordering the clerk to provide it with free access to the unbound original records, as requested, and that it be provided with reasonable comfort and facility to do its business.

It was stipulated further that the clerk normally allows other members of the public to maintain permanent or semiperman-ent equipment in the courthouse, such as telephones and typewriters, and that any member of the public, whether commercial enterprise or individual, is allowed access to the unbound original documents.

The two cases were consolidated, and trial was held in March, 1982. Based on the stipulated facts, and some short testimony which added only that one piece of paper, out of all those which had been copied, had been crumpled, but not destroyed, by the microfilm machine. Otherwise, the testimony merely iterated the facts contained in the stipulation. The trial court rendered its judgment in favor of the clerk, and denied plaintiffs’ request for mandamus. In its reasons for judgment, the trial judge stated that the public records laws, La. Const, art. 12, § 3; R.S. 44:31, allow members of the public to examine and reproduce the public records in a reasonable manner, that a member of the public is not given the right to copy all of the public records, and that there is no right which guarantees access to the records for the purpose of deriving economic profit. Plaintiffs took a devolutive appeal to, and sought writs from, the court of appeal. The court denied the writs, stating that the proper remedy was an appeal. In due course, the court of appeal rendered its judgment, and affirmed the decision of the trial court.

The court of appeal found that the constitution guarantees only the right to examine the public records, but does not guarantee the right to photograph or otherwise reproduce the records. The court also held that C.C.P. 251 applied to the clerk only in her capacity as custodian of the court’s records, but not in her capacity ex officio as custodian of the conveyance and mortgage records for the parish. The court finally went on to hold that the public records inspection law, R.S. 44:31, as amended by Acts 1978, No. 686, § 1, gave discretion to the clerk to determine which method of reproduction or examination is to be used, and that the clerk could properly require Title Research Corporation or Mr. Heeter to purchase the copy provided by the clerk’s office.

The right of the public to have access to the public records is a fundamental right, and is guaranteed by the constitution. La. Const, art. 12, § 3. The provision of the constitution must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally, provides otherwise. Id. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to see. To allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights.

This right of access takes on great practical importance in light of Louisiana’s very strict, statutorily created public records doctrine. According to the doctrine, any act affecting immovable property is utterly null and void, except as between the parties, if it is not recorded in the parish where the property is located. In particular, private transfers of title, C.C. 2246, 2264, 2442, and matrimonial agreements, judgments and judicial sales, C.C. 2265, which concern immovables, affect third parties — such as creditors and future purchasers — only from the moment that they are recorded. It is fundamental in Louisiana that any person who is not a party to a convention or judicial proceeding involving an immovable may enter into a transaction involving that immovable, and establish his rights therein by relying solely on the public records. McDuffie v. Walker, 125 La. 152, 166-67, 51 So. 100, 105 (1909). Actual knowledge alone of a contrary disposition of the property will not affect the third person’s rights. The contrary disposition must be recorded properly before the third person’s rights are affected; but the recordation, even without the knowledge of the recordation, shall be determinative of the third person’s rights.

In order to give effect to this strict doctrine, it is essential that any third person — any member of the public — must be given complete and unrestricted access to those public records which affect immovables, in particular, the conveyance and mortgage records. The legislature by the public records statutes sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records which the laws deem to be public. There was no intent on the part of the legislature to qualify, in any way, the right of access. See Webb v. City of Shreveport, 371 So.2d 316, 317-18 (La.App.), writ denied, 374 So.2d 657 (La.1979). As with the constitutional provision, the statute should be construed liberally, and any doubt must be resolved in favor of the right of access.

The legislative intent to provide the access in as unrestricted manner as possible is expressed best by R.S. 44:32(A). Any adult member of the public need only request a record, and the custodian must supply it. The custodian may not make any inquiry, with the exception of the age and identity of the borrower, into the reason for the request, nor may the custodian attempt to intimidate any person by requesting to see what information the viewer has extracted from the public records. Additionally, the custodian must provide sufficient facility and comfort to allow the viewing public to exercise its rights of access, and thereby not discourage any member from exercising his rights.

More specifically, R.S. 44:31 gives to “any person of the age of majority” the right to choose from four options: he may inspect the records; he may copy the records; he may reproduce the records; or he may obtain, from the custodian, a reproduction of the records. The statute is clear and unambiguous in its grant of these alternate rights, and it also is clear that the choice of which optional right to exercise rests with the one requesting the records and not with the custodian.

Legislatively balanced against the public’s rights of access, it is the duty of the custodian to preserve the public records, and to ensure that nobody alters or destroys the records. This “vigilance” by the custodian, however, must be reasonable, and it must be by those means which are least intrusive on the right of access. Any restriction or limitation imposed by the custodian places the burden on the custodian to justify the restriction or limitation. R.S. 44:35(B).

As a qualified member of the public, Mr. Heeter is entitled to inspect, copy, reproduce, or obtain a reproduction of the requested public records. He has chosen to reproduce the records, in toto, by means of microphotographic reproduction techniques. He has chosen the method, and the clerk-custodian may not inquire into his choice of medium. Nor may the clerk inquire as to the purpose for the large request. A commercial purpose will not justify thwarting the right to copy the public records.

It has been pointed out that one record, out of perhaps thousands, was crumpled in one of the machines which Mr. Heeter was operating, and that some of the records were returned out of order. This single occurrence of alteration does not give to the custodian the power to prevent Mr. Heeter from ever reproducing the records again. Finding the records out of order is not such an “alteration” as justifies excluding a member of the public from exercising his rights.

R.S. 44:35(B) places the burden of justification on the custodian, and in this case the custodian has failed to meet her burden.

Accordingly, the judgment of the courts below is reversed, and the clerk of court is ordered to provide the requested records to Mr. Heeter, or other qualified representatives of Title Research Corporation, and allow the reproduction of those records by any safe means during normal business hours in a non-discriminatory manner, and free of charge. All reasonable attorney’s fees are assessed as costs, to be fixed by the district court on a rule filed by plaintiffs. All costs are assessed against defendant. R.S. 44:35(D).

BLANCHE, J., concurs and assigns reasons.

BLANCHE, Justice

(concurring).

I concur being of the opinion that the clerk’s decision to prohibit plaintiffs from copying the records in the manner chosen, during office hours, was without authority in law.

I disagree however, with the majority’s statement that any member of the public must be given complete and unrestricted access to the public records which affect immovables. The right of access must be reasonable but may not be gained at the inconvenience of the public or the orderly operation of the clerk’s office.

Nor is it necessary for the purposes of the opinion to opine how unrestricted the right of access should be for all circumstances. The only access question before this Court is the present one. For the purposes of this opinion, the clerk need only be instructed that she is to give the plaintiffs reasonable access to inspect and reproduce the public records of her office. This right of access, however, is not to interfere with the public’s convenience or the orderly operation of the clerk’s office. The right to copy and reproduce- may, at the direction of the clerk, be conducted after working hours in accordance with La.R.S. 44:32(A) subject only to whether such control by the clerk is reasonable.

      . The court of appeal erred in denying plaintiffs' request for preferential docketing. A clearer mandate could not be fashioned:
      “Any suit brought in any court of original jurisdiction to enforce the provisions of this Chapter shall be tried by preference and in a summary manner. Any appellate courts to which the suit is brought shall place it on its preferential docket and shall hear it without delay, rendering a decision as soon as practicable." R.S. 44:35(C).

      ."The custodian shall present any public record to any person of the age of majority who so requests. The custodian shall make no inquiry of any person who applies for a public record, except an inquiry as to the age and identification of the person and may require the person to sign a register and shall not review, examine or scrutinize any copy, photograph, or memo-randa in the possession of any such person; and shall extend to the person all reasonable comfort and facility for the full exercise of the right granted by this Chapter; provided that nothing herein contained shall prevent the custodian from maintaining such vigilance as is required to prevent alteration of any record while it is being examined; and provided further, that examinations of records under the authority of this Section must be conducted during regular office or working hours, unless the custodian shall authorize examination of records in other than regular office or working hours. In this event the persons designated to represent the custodian during such examination shall be entitled to reasonable compensation to be paid to them by the public body having custody of such record, out of funds provided in advance by the person examining such record in other than regular office or working hours.” R.S. 44:32(A).

      . We note that the court of appeal was correct when it stated that C.C.P. 251 applied to the clerk only in her capacity as custodian of the court’s records.

      . "Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter any person of the age of majority may inspect, copy or reproduce or obtain a reproduction of any public record.” R.S. 4'4:31.
      See R.S. 44:32(C)(1):
      “For all public records, except public records of state agencies, it shall be the duty of the custodian of such public records to provide copies to persons so requesting. The custodian may establish and collect reasonable fees for making copies of public records. Copies of records may be furnished without charge or at a reduced charge to indigent citizens of this state.”


author: BLANCHE, Judge. LEMMON, J., DIXON, Chief Justice

text:
    STATE of Louisiana v. Norris VESSELL.
    No. 82-KA-2599.
    Supreme Court of Louisiana.
    April 2, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Paul Katz, Asst. Dist. Attys., for plaintiff-appel-lee.
    Dwight Doskey, Clyde Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   BLANCHE, Judge.

Norris Vessell was indicted by an Orleans Parish grand jury for the October 9, 1976, first degree murder of Patricia Potter. La.R.S. 14:30 (1976). Following the denial of his motion to suppress his confession, he exercised his right to a jury trial. The first three trials ended in mistrials (the last two with hung juries), but at a trial in May, 1980, the defendant was found guilty as charged. The jury unanimously recommended that he be sentenced to life imprisonment at hard labor, without benefit of parole.

FACTS

Both defendant and the victim, Patricia Potter, worked until approximately midnight on Friday, October 8, 1976. A short time later the victim, with defendant in her ear, picked up Elizabeth Calix to give her a ride home from work. Before bringing Elizabeth home, Patricia told her that the defendant had invited her to go with him for a drink and that they might go to a pool hall near her house. She also asked Elizabeth to phone the next day. Elizabeth called, but received no answer.

Sunday morning Patricia’s mother, somewhat concerned because she had not heard from her daughter, came to Elizabeth’s house to inquire about her. The two went to Patricia’s apartment, and although they found nothing unusual there, they did not find Patricia. Finally, Patricia’s mother contacted the police to file a missing person report. Upon hearing that there was a woman in the morgue whose clothing fit the description of those Patricia had been wearing, Elizabeth went to the morgue and identified Patricia’s body.

Two members of the New Orleans Police Department testified that the victim’s body was found lying in three or four inches of water where the Industrial Canal meets Lake Pontchartrain. The doctor who performed the autopsy testified that the hands and feet of the victim had been bound and that she had sustained five different blows to the area of the head, either with a blunt instrument or with a fist. Additionally, there was bruising in the neck, and dissection showed bleeding in the small muscles of the neck and around the thyroid gland. Based on the bruising pattern of the victim, the doctor stated it was his opinion that the victim had been bound while her heart was still beating. The doctor stated that the cause of death was either drowning or strangulation. On cross-examination the doctor said that it was not possible to pinpoint the time of death, but that the victim had been dead between four and twelve hours when he performed the autopsy at 11:30 a.m. Saturday.

Following the identification of the body, the officers went to defendant’s home to question him because he was the last person known to have been with the victim. When Yessell denied knowing the victim, the police informed him that he was a suspect, informed him of his Miranda rights and asked that he come to the station with them for questioning. At the station, he gave a confession which is the subject of the first assignment of error discussed below. In that confession, he stated that after dropping Patricia’s friend at her house, he and the victim went to a pool hall where they had two drinks and played pinball. They left there, went to the victim’s apartment and played cards for about three hours. Defendant said that he told the victim he was going home because he was tired and that she attempted to restrain him. He pushed her away and started for the door, but she grabbed him again.

The statement goes on to describe a struggle between the two, ending with a punch to the victim’s throat. The defendant attempted to administer mouth-to-mouth resuscitation when he realized that the victim was barely breathing, but this failed to revive her. The defendant then stated that, believing her dead, he bound her hands and feet, placed her in her car, and drove her to the lakefront, where he placed her body on the second step from the water. He then drove her car to the area of the Fairgrounds where he abandoned it.

Using the information obtained from the confession, the police located the victim’s car where defendant said it had been abandoned. In a search of defendant’s home, the police also seized a microphone taken from the victim’s car.

Assignment of Error No. IV

In this assignment of error, the defendant complains of the erroneous admission into evidence of the inculpatory statement taken from him by the police. Defendant contends that the admission was improper because the state failed to rebut testimony by the defendant that the officials used coercion in the form of physical abuse to obtain the confession.

On direct examination by the State at the hearing on the motion to suppress, the arresting officers, Detectives LeBlanc and Cutrer, testified that they were alone with the defendant in the interrogation room and remained with him throughout the interrogation and until the transcription of the statement was completed. Each officer was asked by the prosecutor whether threats, promises or coercion had been used to obtain defendant’s confession, and each responded in the negative. On cross-examination Detective LeBlanc conceded that he “may have left [the room] to go to the restroom or something along that line ...” Detective Cutrer also admitted that other people may have come in momentarily and then left.

The defendant’s testimony on direct examination differed from the officers’. Ves-sell testified that several officers came and went from the interrogation room and that neither LeBlanc nor Cutrer were present at all times. He testified that when LeBlanc and Cutrer and two other officers became frustrated with his repeatedly denying knowing the victim, one of the officers struck him. Vessell said he jumped up, and the officers left him alone for a few minutes, that one of them returned to reassure and calm him, and that while they were talking, the other three rushed in and handcuffed him to the chair. Vessell testified that one officer began toying with his weapon and threatening to do to Vessell what he “had done to Patricia.” According to Vessell, a total of six officers were in the room at one time, and he testified that he was beaten in the head and chest, that one officer placed a plastic bag over his head, and that Detective LeBlanc slammed the typewriter into his back. Vessell said that the officers told him that he was not leaving the room until he told them what they wanted to know, and later threatened to arrest his wife and daughter if he continued to refuse to cooperate. Another officer allegedly told Vessell that if he did not answer the questions, he was going to be found in the lake. Vessell testified that twice during the interrogation he asked for a lawyer, but that his requests were ignored.

Vessell further testified that, upon being taken to parish prison, he told officials that he had been beaten and requested medical attention. He testified that a matron told him that she would get a court order from the magistrate that he be sent to a doctor. He testified that he was taken to Charity Hospital once, but that they were only taking emergencies that day, and so he was taken back a day later for examination.

According to Earl Cannon, the administrator and custodian of medical records for Orleans Parish Prison, it is routine prison procedure for someone from the medical department to ask incoming prisoners whether they are having medical problems and if they were injured while being arrested. According to prison records, which were admitted into evidence, Vessell said that he needed medical attention. The court order requesting that Vessell be taken to Charity Hospital was also made a part of the record. In addition, the physician who treated Vessell two days later testified that he had complained of a chest trauma and of coughing up blood several times. The doctor’s records indicated that Vessell had a large bruise over the sternum and that x-rays showed no broken bones. Although she also testified that a blow of sufficient force to the sternum could cause accumulation of blood in the lungs due to the bruising, the doctor could not testify as to when the bruising had occurred.

The defendant’s wife testified that he was not bruised or otherwise injured prior to his arrest, nor had he been coughing up blood. The defendant’s mother testified that she had been with the defendant on the day of his arrest and that he had not complained of coughing blood and that as far as she knew he was not bruised, though she had not seen him without a shirt that day.

The State did not recall either LeBlanc or Cutrer to the stand, but cross examined the defendant about previous self-abusive behavior. This included the fact that he had attempted suicide once in the past and had been treated in the psychiatric wing at Charity Hospital. Vessell also admitted going on a limited hunger strike while in parish prison awaiting trial. When questioned about having beaten his head against his cell wall, Vessell denied the incident, but it had been recorded by medical personnel in the prison and those records were admitted into evidence.

Before a confession or inculpato-ry statement can be introduced in evidence, the State bears a heavy burden of proving affirmatively and beyond a reasonable doubt that it was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements or promises. C.Cr.P. art. 703; La.R.S. 15:451; State v. Bell, 395 So.2d 805 (La.1981); State v. Petterway, 403 So.2d 1157 (La.1981); State v. Franklin, 381 So.2d 826 (La.1980). When a defendant alleges specific instances of police misconduct in reference to the statement, it is incumbent upon the state to specifically rebut the allegations. State v. Petterway, supra; State v. Dison, 396 So.2d 1254 (La.1981); State v. Franklin, supra. However, the State need not wait until after the defendant’s ease in chief to meet the allegations, but may anticipatorily rebut a defendant’s allegations of force or coercion. See, e.g., State v. Hills, 354 So.2d 186 (La.1977).

This is not a situation where the State simply failed to call witnesses which were known and available to it who could perhaps have specifically rebutted the defendant’s allegations. Cf., State v. Simmons, 328 So.2d 149 (La.1976). On the contrary, it is the State’s position that the two officers who testified were the only officers present during the interrogation. The officers also testified that no violence was used to obtain the confession. We are faced, therefore, with contradictory testimony which calls for a determination of the credibility of the witnesses. The trial court obviously disbelieved the version presented by Vessell and found credible the testimony of Officers Cutrer and LeBlanc. Such a determination is within the sound discretion of the trial court and, like all questions of fact, is entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Bell, 395 So.2d 805 (La.1981); State v. Hudson, 361 So.2d 858 (La.1978); State v. Cobbs, 350 So.2d 168 (La.1977).

A review of the testimony shows that the trial court’s findings of credibility and the finding of a knowing and voluntary confession based thereon are not contrary to the evidence. Officers Cutrer and Le-Blanc testified that they were the only two police officials who participated in the interrogation of Vessell. Although LeBlanc acknowledged that he may have left the room to go to the restroom and Cutrer said that other people may have come and gone from the room, this is not to be unexpected in a busy police station and does not militate against the trial court finding that there were no other participants in the interrogation or the taking of the inculpato-ry statement. Although Vessell contended that from four to six other officers were involved in the alleged abuse, his testimony is far from clear or consistent in the number of persons present, and he neither named nor described the others whom he alleged to have used physical force to obtain his confession. Insofar as the medical testimony is concerned, the doctor could not testify as to how the bruise had been inflicted, nor could she state how long it had been present before her examination. For these reasons, we decline to disturb factual findings of the trial court that are well within its discretion.

This assignment of error lacks merit.

Assignment of Error No. 5

By this assignment of error, the defendant argues that the trial court erred in admitting documentary evidence under the business record exception to the hearsay rule.

The initial investigation of Potter’s death led Detectives LeBlanc and Cutrer to her apartment at 225 N. Cortez Street. Inside, the officers found musical equipment and a phone book listing the number of an Eden Reyes, the victim’s former boyfriend. Reys had been living in the apartment with Potter but was in Albany, Georgia at the time of the offense. Cutrer then called Reyes from Potter’s apartment. Over a timely hearsay objection by the defense, the officer repeated the substance of his conversation with Reyes for the jury. Cutrer explained that he asked Reyes to tell him what he had left at the apartment and that Reyes listed several items of musical equipment, including two microphones in white cases. Cutrer stated that only one microphone was found at the apartment. When asked if he remembered the brand name of the microphones mentioned by Reyes, Cutrer responded that he believed it was “Shure.”

In his confession, Vessell admitted having taken a microphone from Potter’s car before abandoning it and that the microphone was at his house. On the basis of that information, the officers secured a search warrant for defendant’s residence and recovered the microphone, which was a “Shure” brand.

In its case-in-chief, the State called to the stand Julia Calahan, who stated that she was the custodian of records for Werlein’s Music Store in New Orleans. Calahan brought with her copies of two documents: a sales contract and an “original delivery copy from our sales form” purporting to show the delivery of merchandise to an Eden Reyes at Potter’s address on May 29, 1976.

Over a timely defense objection that the State planned to use the business record exception to the hearsay rule without first laying the proper foundation, Calahan read from the delivery form: “Two Sure [Shure] mikes, one stand, one set of base strings, and one Sony cassette recorder.” Over renewed objections that the predicate for the business record exception had not been made, the State introduced the documents into evidence.

In this appeal the defendant cites as reversible error the trial court’s failure to sustain the objections to the admission of this evidence. He argues that since the State failed to show that the person who had sold the equipment to Reyes or delivered it to him and actually made out the receipts was unavailable, the State failed to establish the predicate for the admission of the testimony.

The premise of defense counsel’s argument is entirely correct. In State v. Monroe, 345 So.2d 1185 (La.1977), this court reaffirmed its original formulation of the business records exception to the hearsay rule:

Before the exception may be invoked by the State against the defendant, allowing introduction of a permanent record made in the ordinary course of business from personal knowledge of the facts recorded, or from information furnished to one having business duty to observe and report the facts, it must be shown that the person who made the record is genuinely unavailable for testimony, that he had no strong motive to misrepresent, and that in all probability the evidence is trustworthy. Id. at 1190.

Two years later this court referred to the requirement set out in Monroe and noted:

In view of the constitutional right of an accused to confront and cross-examine the witnesses against him, U.S. Const. Amend. VI: La. Const.1974, art. I, § 16, and the statutory prohibition against hearsay evidence, except as provided by law, La.R.S. 15:434, a broader business records exception for the admission of hearsay against a defendant in a criminal prosecution is unwarranted. State v. Perniciaro, 374 So.2d 1244, 1247 (La.1979); See also, State v. Stokes, 433 So.2d 96 (La.1983), and State v. Vaughn, 378 So.2d 905 (La.1979).

In this case, Calahan freely admitted that she was not a salesperson and that she appeared in court only as the custodian of the records prepared by someone else. Since the State failed to account for the whereabouts of the original recorder, the trial court’s rulings on the defense objections were clearly erroneous. State v. Monroe, supra; State v. Perniciaro, supra; State v. Phagans, 412 So.2d 580 (La.1982); State v. Juengain, 410 So.2d 1099 (La.1982).

The defendant further contends that the erroneous admission of the business records evidence was not harmless error, and we agree.

In State v. Gibson, 391 So.2d 421 (La.1980), this court adopted the standards enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) for determining what error may be deemed harmless: A reviewing court (1) must determine whether there is a reasonable possibility that erroneously admitted evidence might have contributed to the conviction, and (2) must be able to declare a belief beyond a reasonable doubt that the error was harmless beyond a reasonable doubt.

The importance of this evidence in the jury’s determination of guilt is inescapable. With the Werlein's document and Cutrer’s hearsay account of his conversation with Reyes, the state had independent confirmation that the microphone found in defendant’s apartment was almost certainly one of two delivered to Reyes at the victim’s address, a place defendant claimed at trial he had never been. Without the inadmissible evidence, the two microphones were tied together only by the coincidence in the brand name and the statements made by the defendant in his confession, which he denied at trial. Indeed, in its closing arguments the State referred to this evidence as lending credibility to the defendant’s confession as opposed to his testimony at trial. It is impossible for this court to say that the improperly admitted hearsay evidence was harmless beyond a reasonable doubt. Thus, this assignment of error calls for a reversal of the conviction and remand for a new trial.

Assignment of Error No. 6

By this assignment, the defendant urges that the trial court erred in allowing the State to present evidence of defendant’s bad character when he had not placed his own character at issue.

The defendant claimed at trial that he had signed the pages of his confession in blank after a beating at the hands of several police officers that left him with bruises on his chest, back, and penis. The state responded to the allegations by suggesting that defendant had a history, in and out of parish prison, of inflicting injuries on.himself. Defendant’s repeated denials on cross examination that he had ever intentionally harmed himself led to the following exchange:

Q: So, you still insist that you have— you’ve not inflicted injuries on yourself, is that correct?
A: Not intentionally.
Q: Now, in that regard, you consider yourself non-violent?

At this point defense counsel objected, contending that the question pertained to a character trait, but the trial court overruled the objection and the defendant asserted that he considered himself a non-violent person under normal conditions. The questioning continued:

Q: And, how [do] you feel about women in relation to violence?
A: What do you mean?
Q: Well, in your talking about abusing women?
A: I’m against that, totally.
Q: Okay. You think women should ever be touched or hit in any manner?
A: No.

Over objection that the State was impeaching defendant on a collateral matter and that it had not given proper Prieur notice, the prosecutor then brought Dorothy Ramsey into the courtroom and confronted defendant once more:

Q: Did you recognize this lady that was right here?
A: Yes, I did.
Q: And, who is she?
A: Used to be a girlfriend of mine.
Q: Do you know her name:
A: Dorothy.
Q: Pardon?
A: Dorothy. I forget her last name.
Q: Now, is your answer still correct, that you don’t believe or in — violence against women?
A: That’s right.
Q: And, you don’t believe they should be abused, or hit in anyway [sic], is that correct?
A: That's true.

In its rebuttal case, the' State called Dorothy Ramsey to the stand and the court allowed her to testify over defense objections that she was going to testify to a character trait and that the defendant had not placed his character at issue. In response to a question by the State as to whether the defendant had ever hurt her, Ramsey testified that when she was fifteen years old “... he ... forced me to do something that I didn’t want to do ...” The prosecutor then underscored the testimony for the jury:

Q: Did he use any physical force to make you do that?
A: Yes.

An accused who takes the stand in his own defense'is subject to impeachment by discreditation as is any other witness. La.R.S. 15:434; State v. Prather, 290 So.2d 840 (La.1974). This right of the cross-examiner to impeach a defendant has its limits, however. One of those limitations is that .the accused may introduce evidence of his character to show that he is not the type of person who would commit the particular crime charged, but until he does so his character is not at issue and may not be the subject of cross-examination. La.R.S. 15:481; See also, State v. Frentz, 354 So.2d 1007 (La.1979) and cases cited therein.

A review of the record makes it clear that the defendant did not place his character at issue at any point during his case in chief. In form, the prosecutor’s questions to defendant called only for his opinion about the use of violence against women. In context, however, it called upon defendant to assess his character generally with regard to violence and in particular with regard to women. Since the defendant had not placed his character at issue, it was error for the trial court to overrule the defense objections to the line of questioning regarding his violent or nonviolent nature.

Further, the obvious purpose of the State in confronting defendant with Ramsey on cross-examination was to elicit his admission or denial that he had, in fact, abused at least one woman in the past. When the defendant repeated his belief that women should not be abused, the State called Ramsey on rebuttal to testify to a specific act which contradicted defendant’s assertion.

It was error to allow Ramsey’s testimony on two counts. First, if the State sought to use her testimony to attack the general credibility of the defendant, the inquiry should have been limited to the witness’s knowledge of the defendant’s general reputation, rather than going into particular acts or conduct by the defendant. La.R.S. 15:491.

Second, La.R.S. 15:494 expressly provides that “[i]t is not competent to impeach a witness as to collateral facts or irrelevant matter.” Discussing this provision in State v, Cappo, 345 So.2d 443, 444 (La.1977), this court noted that:

We have previously held that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence, (citations omitted) The rule is designed to avoid unnecessarily prolonging trials and confusing the issues by extended inquiries into extraneous matters, (citations omitted)
Facts which could have been shown in evidence for any purpose independently of the contradiction are not collateral. Thus, facts relevant to some issue in the case or otherwise receivable for the purpose of impeaching the witness are provable in contradiction, (citation omitted)

Ramsey’s testimony had no independent value as substantive evidence. Only two material issues of fact were actually disputed at trial: the identity of Potter’s assailant and the intent with which he struck the victim. However, had the State intended to use Ramsey’s testimony to prove identity, it would have had to demonstrate, inter alia, that “the modus operandi employed by the defendant in both the charged and uncharged offenses [was] so peculiarly distinctive that one must logically say they are the work of the same person ...” State v. Hatcher, 372 So.2d 1024, 1033 (La.1979) (on rehearing), and cases cited therein. That distinctiveness is clearly lacking here. In addition, the Ramsey incident had no probative value on the question of whether defendant had specifically intended to kill Potter or inflict serious bodily harm, as it was otherwise clear from his confession, if believed, that he had struck the victim intentionally.

Again, we cannot say that the error by the trial court in allowing this testimony constituted harmless error. We find that there was a reasonable possibility that the erroneously admitted testimony might have contributed to the jury’s finding of guilt. The State had trapped the defendant in a lie, which is no small gain before a jury in a case that turned entirely on a credibility choice between the defendant and the officers who claimed they had taken his confession. For these reasons, defendant’s conviction must be reversed and the case remanded for a new trial.

Assignment of Error No. 9

By this assignment, the defendant contends that the trial court committed reversible error in failing to instruct the jury properly on reasonable doubt, as defined in La.C.Cr.P. art. 804.

The defendant asked the trial judge to instruct the jury that “a reasonable doubt may arise either from the evidence in the case or the lack of evidence in the case.” The judge refused to give the requested charge, and instructed the jury as follows:

You are prohibited by law and your oath from going beyond the evidence to seek for doubts upon which to acquit the defendant, but must confine yourselves strictly to a dispassionate consideration of the testimony given upon the trial. You must not resort to extraneous facts or circumstances in reaching your verdict. That is, you must not go beyond the evidence to find facts or circumstances creating doubts, but must restrict yourselves to the evidence that you heard on the trial of this case.
You are the exclusive judges of the facts. You are to find from the evidence which facts have been proved and which facts have not been proved. For this purpose, you determine the credibility of the witnesses, accordingly as you are impressed with his or her veracity.

Defense counsel objected in advance to this jury charge and renews that objection on appeal.

This instruction on reasonable doubt is identical to that which this court declared patently erroneous in State v. Gibbs, 355 So.2d 1299 (La.1978). .In Gibbs the defendant only objected to the omission of the instruction that the jury could not go beyond the evidence to convict, and the court held that it was clear from the instructions taken as a whole that the trial court had adequately covered that matter. Gibbs, however, did not object to that part of the instruction which the court recognized as patently erroneous, and so the court did not reach that issue. Three years later, however, we held that instructions identical to the case at bar and those in Gibbs constituted reversible error. State v. Mack, 403 So.2d 8 (La.1981).

As was explained in a footnote in the Gibbs decision, and later in State v. McDaniel, 410 So.2d 754 (La.1982), and most recently in State v. Rault, 445 So.2d 1203 (1984), the error in such an instruction is not merely the omission of the statutory language that reasonable doubt may arise from the lack of evidence, but is that the trial judge specifically limited the jurors to the evidence before them to support a reasonable doubt and prohibited the jury from going outside the evidence to find reasonable doubt. As La.C.Cr.P. art. 804 makes perfectly clear, the jury is not restricted to the evidence adduced from the witness stand for the creation of reasonable doubt, but may find it from the lack of evidence.

In Mack this court mandated a reading of C.Cr.P. art 804 to the jury, but that ruling has recently been modified to approve either a reading of the article or instructions substantially equivalent to the statute. State v. Rault, supra. We found the jury charge in Rault to be substantially equivalent to the statutory language, specifically contrasting it to the erroneous instructions in Mack, because the trial court gave a lengthy explanation of reasonable doubt and concluded by instructing the jury that it must determine what facts had been proved and what facts had not been proved. The instruction in the instant case is not substantially equivalent to the statute, but is in direct opposition to the statutory provision that the jury may find reasonable doubt from the lack of evidence adduced at trial. Although the State contends that the trial court instructed the jury in substance that it was to determine which facts had been proved and which had not, when the entire instructions are read as the jury heard them, it is evident that the judge was instructing not on the lack of evidence, but on credibility. Such an instruction constitutes reversible error for the reason we made clear in Mack: “A correct understanding of reasonable doubt is essential in every criminal jury trial.” 403 So.2d 8, 11.

DECREE

For the reasons assigned, the conviction and sentence are reversed, and the cause remanded to the district court for a new trial.

REVERSED AND REMANDED.

DIXON, C.J., concurs with reasons.

LEMMON, J.,

concurs believing the conviction clearly must be reversed because of the erroneous instruction on reasonable doubt, but considers the discussion of any other reasons for reversal to be dicta.

DIXON, Chief Justice

(concurring).

I respectfully concur.

Furthermore, it does not appear that the state carried its burden of proving the admissibility of the confession.

      . La.R.S. 14:30 (1976) read:
      First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.
      Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury.

      . The record spells the name interchangeably as [Eden or Edin or Eddie] Reyes or Rayes.

      . Although defense counsel timely objected to this testimony as hearsay, the issue was neither briefed nor argued before this court, and so is considered abandoned.

      . La.C.Cr.P. art. 804 provides, in pertinent part:
      A. In all cases the court shall charge the jury that:
      It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the court, to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence in the case.


author: CALOGERO, J.,

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. LULING INDUSTRIAL PARK, INC., and St. Charles Holding, Inc.
    No. 83-C-2573.
    Supreme Court of Louisiana.
    May 21, 1984.
   In re State of Louisiana, through the Department of Transportation & Development, applying for Stay Order; Court of Appeal, Fifth Circuit, Nos. 5-61 and 5-180; 19th Judicial District Court, Parish of St. Charles, No. 14633.

Motion for stay order denied.

CALOGERO, J.,

would grant the stay order sought and notes additionally that if the trial court’s ruling after today’s hearing is adverse, relator will be at liberty to seek writs here and a stay order in conjunction therewith.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. LULING INDUSTRIAL PARK, INC., and St. Charles Holding, Inc.
    No. 83-C-2573.
    Supreme Court of Louisiana.
    May 21, 1984.
   In re State of Louisiana, Through the Department of Highways, applying for Reconsideration of denied writ dated February 3, 1984; Court of Appeal, Fifth Circuit, Nos. 5-61 and 5-180; 29th Judicial District Court, Parish of St. Charles, No. 14633.

Reconsideration denied. The judgment is definitive.


text:
    Betty T. BURGESS v. CITY OF SHREVEPORT, et al.
    No. 84-C-0784.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Betty T. Burgess, applying for Writ of Certiorari or Review to the Second Circuit Court of Appeal, No. 16141, from the First Judicial District Court, Parish of Cad-do, No. 269-464.

Granted.


text:
    Betty T. BURGESS v. CITY OF SHREVEPORT, et al.
    No. 84-C-0827.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re State of Louisiana and Caddo Parish Board of Election Supervisors, applying for Writ of Certiorari or Review to the Second Circuit Court of Appeal, No. 16141-CA; 1st Judicial District Court, Parish of Caddo, No. 269-464.

Granted.


text:
    STATE of Louisiana ex rel. Albert ANDERSON v. STATE of Louisiana.
    No. 84-KH-0852.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Albert Anderson, applying for Writ of Habeas Corpus to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 3-82-245 Section I.

Writ granted. Relator’s appeal in Court of Appeal is reinstated. Court of Appeal should order relator’s counsel to pursue the appeal or appoint new counsel.


text:
    STATE of Louisiana ex rel. James J. YOUNG v. STATE of Louisiana.
    No. 84-KH-0899.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re James J. Young, applying for Post Conviction Relief, from the Criminal District Court, Parish of Orleans, No. 277-849.

Granted. The trial court is ordered to conduct an evidentiary hearing on relator’s application.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Edward C. KARST.
    No. 84-OB-0586.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Edward C. Karst, applying for Reinstatement to the Louisiana State Bar.

Application for reinstatement is deferred. Relator must comply with procedures set forth in article 15, section 12 of the Articles of Incorporation.


text:
    Joseph A. RODRIGUE v. FIREMEN’S FUND INSURANCE COMPANY.
    No. 84-C-0444.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Joseph A. Rodrigue, applying for Reconsideration of a Writ Not Considered on April 2, 1984, 447 So.2d 484, to the Fifth Circuit Court of Appeal, 83-CA-591, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 257-852.

Denied.


text:
    Madalyn COCHRANE v. WINN DIXIE OF LOUISIANA, INC.
    No. 84-C-0766.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Madalyn Cochrane, applying for Reconsideration of a Writ Not Considered on May 4, 1984, 449 So.2d 1353, to the Fourth Circuit Court of Appeal, No. CA-1311, from Civil District Court, Parish of Orleans, No. 81-10880, Division “G”.

Reconsideration denied.


text:
    STATE of Louisiana v. James Isaac STEVENSON.
    No. 84-CK-0963.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re James Isaac Stevenson, applying for Motion for Delayed Appeal, to the First Circuit Court of Appeal, No. 83-KJ-0730; 19th Judicial District Court, Parish of East Baton Rouge, No. 3-82-639.

Motion considered and denied.

CALOGERO, J., would grant.


text:
    STATE of Louisiana v. Willard CARTER, Jr.
    No. 83-KH-2390.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Willard Carter, Jr., applying for Remedial Writs, Parish of Orleans, Nos. 261-604 and 277-500.

Denied. Moot.


text:
    STATE of Louisiana v. Leon BEVERLY.
    No. 84-KO-0626.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Leon Beverly, applying for Remedial Writ to the Second Circuit Court of Appeal, No. 15878KA; Fourth Judicial District Court, Parish of Ouachita, No. 38-726.

Denied.


text:
    STATE of Louisiana v. Kerry Van WELCH.
    No. 84-K-0656.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Kerry Van Welch, applying for Writ of Certiorari, or Review, to the Court of Appeal, First Circuit, No. 83-KA-0771; 19th Judicial District Court, Parish of E. Baton Rouge, No. 9-82-459.

Denied.

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


text:
    STATE of Louisiana ex rel. Otis L. MURPHY Louisiana State Penitentiary v. Ross MAGGIO, Jr., Warden.
    No. 84-KH-0675.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Otis L. Murphy, applying for Writ of Habeas Corpus to the Fifth Judicial District Court, No. 35501, Parish of Richland.

Denied.


text:
    STATE of Louisiana ex rel. Eugene BRADFORD, Jr. v. STATE of Louisiana.
    No. 84-KH-0696.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Eugene Bradford, Jr., applying for writ of Mandamus, Prohibition, Certiorari and Habeas Corpus to the Fourth Judicial District Court, Parish of Ouachita, No. 40026.

Denied.


text:
    STATE of Louisiana, ex rel. Wayne GORDON v. CRIMINAL DISTRICT COURT SECTION “A”.
    No. 84-KH-0704.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Wayne Gordon, applying for Writ of Mandamus, Criminal District Court, Parish of Orleans, No. 275-054.

Denied. Moot.


text:
    Joycelyn M. JONES and Hurie Jones v. JEFFERSON PARISH SCHOOL BOARD.
    No. 84-C-0718.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Joycelyn M. Jones and Hurie Jones, applying for Certiorari, or Writ of Review, to the Court of Appeal, Fifth Circuit, No. 83-CA-661; 24th Judicial District Court, Parish of Jefferson, No. 282-056.

Denied.


text:
    STATE of Louisiana ex rel. Isaac WELCH, Jr. v. 32ND JUDICIAL DISTRICT COURT PARISH OF TERREBONNE.
    No. 84-KH-0786.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Isaac Welch, Jr., applying for Remedial Writ to the Thirty-Second Judicial District Court, Parish of Terrebonne, No. 66449.

Denied. Appeal is pending.


text:
    STATE of Louisiana v. Maverick J. HARMON.
    No. 84-K-0945.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Maverick J. Harmon, applying for Writ of Certiorari to the Third Circuit Court of Appeal, No. CR82-818, from the Fifteenth Judicial District Court, Parish of Acadia, No. 47078.

Denied.


text:
    STATE of Louisiana v. Otis HOLMES.
    No. 84-KH-0937.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Otis Holmes, applying for Remedial Writ, to the Criminal District Court, Parish of Orleans, Division E.

Transferred to the district court.


text:
    Steve Michael BUTLER, et al. v. HOME INSURANCE CO., et al.
    No. 84-C-0795.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Steve Michael Butler, et al, applying for Writ of Certiorari and Review to the Second Circuit Court of Appeal, No. 16063-CA, from the Twenty-sixth Judicial District Court, Parish of Webster, No. 40260.

Denied.

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


text:
    STATE of Louisiana v. Danny K. MILLER.
    No. 84-KP-0804.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Danny K. Miller, applying for Writs of Certiorari, Prohibition, Mandamus, Stay Order to the 24th Judicial District Court, Parish of Jefferson, No. 81-646, Division J.

Denied.

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


text:
    In re Bossier Parish School Board Applying to Perpetuate the Testimony of Nathan DOWDEN, Bob Burford and Jerry W. Griffin and Frank Boston.
    No. 84-C-0809.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Bossier Parish School Board, applying for Writ of Certiorari, or Writ of Review, to the Court of Appeal Second Circuit, No. 16024-CA; Parish of Bossier, Twenty-Sixth Judicial District Court, No. 56479.

Denied.

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


text:
    STATE of Louisiana v. Jim YOUNG.
    No. 84-K-0816.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Jim Young, applying for Writ of Certiorari, Prohibition and Mandamus to the Second Circuit Court of Appeal, No. 15768-KA, from the Twenty-Sixth Judicial District Court, Parish 60065. of Bossier, No.

Denied.


text:
    UNION NATIONAL BANK v. Michael D. GOINES.
    No. 84-C-0819.
    Supreme Court of Louisiana.
    May 25, 1984.
    Reconsideration Denied June 25, 1984.
   In re Thomas and Aprker Auto Sales, Inc., applying for Writ of Certiorari, or Writ of Review, to the Court of Appeal Second Circuit, No. 16025-CA; Parish of Caddo, First Judicial District Court, No. 294-247.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Donald MANCINI.
    No. 84-KK-0820.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re State of Louisiana, applying for Writ of Certiorari and Prohibition to the Criminal District Court, Parish of Orleans, No. 298-794, Fourth Circuit Court of Appeal, No. K-1996.

Denied.

MARCUS, J., would grant the writ.


text:
    Kemp WESLEY v. CLAIBORNE ELECTRIC CO-OP, INC., et al.
    No. 84-C-0828.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Claiborne Electric Co-Op, Inc., applying for Certiorari, or Writ of Review, to the Court of Appeal, Second Circuit, No. 16027-CA; Second Judicial District Court, Parish of Claiborne, No. 27617.

Denied.


text:
    Ray K. JONES v. ARGONAUT INSURANCE COMPANY.
    No. 84-C-0829.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Ray K. Jones, applying for Writ of Certiorari, or Writ of Review, to the Court of Appeal, First Circuit, No. 83-CA-0383; Parish of East Baton Rouge, Nineteenth Judicial District Court, No. 254-155, Division F.

Denied.

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


text:
    STATE of Louisiana v. Joseph R. ROGERS.
    No. 84-KH-0832.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Joseph R. Rogers, applying for Remedial Writ, to the Criminal District Court, Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Sandra RUSSELL.
    No. 84-K-0833.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Sandra Russell, applying for Writ of Review to the Second Circuit Court of Appeal, No. 15919-KA, Parish of Caddo, City Court of Shreveport Nos. B-8541, B-10094.

Denied.


text:
    CITY OF SHREVEPORT v. Major James E. STANLEY, Jr. Major James E. STANLEY, Jr. v. CITY OF SHREVEPORT.
    No. 84-C-0834.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Major James E. Stanley, Jr., applying for Writ of Review to the Second Circuit Court of Appeal, Nos. 16002-CA and 16003-CA, from the First Judicial District Court, Parish of Caddo, Nos. 281776 and 283251.

Denied.


text:
    STATE of Louisiana v. Charles R. COOK.
    No. 84-K-0841.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Charles R. Cook, applying for Writ of Review, to the Court of Appeal Second Circuit, No. 15895-KA; Parish of Caddo, First Judicial District Court, No. 120549A, Section G.

Denied.


text:
    STATE of Louisiana v. Rickie Dale WESTFALL.
    No. 84-K-0842.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Rickie Dale Westfall, applying for Writ of Review to the Second Circuit Court of Appeal, No. 15884, from the First Judicial District Court, Parish of Caddo, No. 121301.

Denied.


text:
    Joseph E. PRESTON v. David CROW.
    No. 84-C-0843.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re David Crow, applying for Writ of Certiorari or Review to the Second Circuit Court of Appeal, No. 15997-CA, First Judicial District Court, Parish of Caddo, No. 263-491.

Denied.


text:
    STATE of Louisiana v. Louis WHITE.
    No. 84-K-0844.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Louis White, applying for Certiora-ri, or Writ of Review, to the Court of Appeal, Second Circuit, No. 15688-KA; 1st Judicial District Court, Parish of Caddo, No. 121481.

Denied.


text:
    STATE of Louisiana v. Herbert James BRADLEY.
    No. 84-K-0846.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Herbert James Bradley, applying for Supervisory and Remedial Writ, to the Court of Appeal Second Circuit, Nos. 15715-KA, 15710-KW, Parish of Ouachita, Fourth Judicial District Court, No. 40379.

Denied.


text:
    STATE of Louisiana ex rel. A.J. HOOKER v. CLERK OF COURT 4TH JUDICIAL DISTRICT COURT PARISH OF OUACHITA.
    No. 84-KO-0853.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re A.J. Hooker, applying for Writ of Certiorari, Review, Supervisory and Remedial, to the Second Circuit Court of Appeal, No. 15781-KA, from the Fourth Judicial District Court, Parish of Ouachita, No. 39062.

Denied.