author: GLICKSTEIN, Judge. WALDEN, Judge,

text:
    AQUARIUS CONDOMINIUM ASSOCIATION, INC., Appellant, v. William MARKHAM, as Property Appraiser of Broward County, Florida, and Max R. Bohnstedt, as Broward County Revenue Collector, Appellees.
    No. 82-2475.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    Herbert B. Lebovitz, Hollywood, for appellant.
    Gaylord A. Wood, Jr., Fort Lauderdale, for appellees.
   GLICKSTEIN, Judge.

This is an appeal by a condominium association from a final judgment entered against it in favor of the Broward County Property Appraiser, granting appellee’s motion for judgment on the pleadings. We reverse and remand.

In Wittington Condominium, Apartments, Inc. v. Braemar Corporation, 313 So.2d 463 (Fla. 4th DCA 1975), this court recognized that for the purpose of a defendant’s motion for judgment on the pleadings well pled allegations in the complaint are taken to be true. Here, the association alleged in its complaint that two lots were common elements. The parties agreed at oral argument that if the lots were common elements, the association should not have been assessed, the property appraiser recognizing that in such instance, the individual unit owners would be assessed proportionately as part of the assessment upon their respective units in the condominium pursuant to section 718.-120(1), Florida Statutes (1981) which provides:

Ad valorem taxes and special assessments by taxing authorities shall be assessed against the condominium parcels and not upon the condominium property as a whole. Each condominium parcel shall be separately assessed for ad valo-rem taxes and special assessments as a single parcel. The taxes and special assessments levied against each condominium parcel shall constitute a lien only upon the condominium parcel assessed and upon no other portion of the condominium property.

It was the property appraiser’s position, however, that the complaint goes on to refer to the original recorded Declaration of Condominium, which does not reflect the two lots as being part of the condominium property. Therefore the trial court properly granted his motion for judgment on the pleadings.

Had this matter been before the trial court on motion for summary judgment where appellant would have been put to its proof, we could see the justness of appellee’s position. Summary judgment separates the fisherman from the bait cutter. This case is most appropriate for disposition by summary judgment if, in fact, there was non-compliance by appellant with the requirements of sections 718.110(3) and (6), Florida Statutes (1981). In the absence of an amendment to the declaration of condominium duly recorded prior to the filing of the present action, such absence would establish that the two lots were not common elements, assuming the original recorded declaration does not include them, as apparently it does not.

The reason given by the trial court for granting appellee’s motion for judgment on the pleadings was that it “found” that the association had not paid its taxes under protest “or to follow the provisions of Section 194.171(3), F.S. and tender to the Revenue Collector the amount of taxes which are claimed in good faith to be due.” It undoubtedly relied upon the opinion in Willig v. Blake, 358 So.2d 871 (Fla. 3d DCA 1978), cited by appellee in its pleadings; but that case is poles apart from the present case in several respects. First, it went off on summary judgment, not judgment on the pleadings. Second, the record there showed the tax collector was not made aware of the fact that the taxpayer simultaneously filed a lawsuit and paid his taxes. In this case, the taxpayer association not only denied the property appraiser’s affirmative defense of payment without protest but also detailed proceedings before the Property Appraisal Adjustment Board. In Willig, the court said:

If the taxpayer takes it upon himself to depart from the statutory scheme, then he is under an obligation to put the Tax Collector on actual notice that he is contesting the taxes paid. In the instant case, there was no actual notice of protest given to the Tax Collector at the time the taxes were paid. Therefore, the payment of the taxes in full without proper protest gave rise to appellees’ complete affirmative defense upon which the trial court granted summary final judgment in their favor. See State ex rel. Victor Chemical Works v. Gay, 74 So.2d 560 (Fla.1954); North Miami v. Seaway Corp., 151 Fla. 301, 9 So.2d 705 (1942); and Tietig v. Dade County, 214 So.2d 634 (Fla. 3d DCA 1968).

There is nothing in Willig to suggest that the taxpayer went through the administrative process as did the association. Moreover, the Revenue Collector of Broward County has never filed an answer in the trial court, alleging an absence of actual notice on his part; nor has the property appraiser made such allegation as an affirmative defense. The former official filed a motion to dismiss, apparently still pending, which merely asserted the association’s failure to allege payment under protest, as did the property appraiser’s affirmative defenses. Wittington would logically suggest that this issue of notice be resolved on summary judgment, not judgment on the pleadings.

Further, we are not completely satisfied with the invulnerability of the “no protest” and “notice” theories, although we do not feel compelled to reach a definitive stand on those points in the present posture of the case. On remand we hope the parties’ research fully analyzes for the benefit of the trial court — and ultimately for this court — the reasons, if any, which justify the necessity of protest or of notice on the one hand versus the alternative notion of involuntariness. We call to the parties’ attention the decision of the supreme court in North Miami v. Seaway Corporation, 151 Fla. 301, 9 So.2d 705 (1942).

Seaway Corporation concerned appel-lee’s attempt to recover taxes it had paid on property not within the jurisdiction of the levying municipality. The supreme court said in part:

The right of a taxpayer to recover taxes paid, where the tax is illegal, is more or less involved and the decisions are in conflict.
Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as a reason why the State should furnish him with legal remedies to recover it. Ignorance or mistake of the law by one who voluntarily pays a tax illegally assessed furnishes no ground for a recovery. See . Cooley on Taxation, Vol. 3, (4th Ed.), page 2565, par. 1282.
All payments are presumed to be voluntary until the contrary is made to appear. [Emphasis added.]

Id. at 306, 9 So.2d at 707. Note that the supreme court did not say that the only way to show involuntariness of the payment is by protesting to the collector at time of payment. Rather, the court went on to give examples, chiefly from Cooley, of circumstances in which payments are voluntary and circumstances in which payments are involuntary. Thus, unless payment was made to save arrest or the sale or seizure of goods, mere protest at time of payment did not alter the voluntariness of the payment; payment in advance in order to obtain a discount was voluntary, but payment to avoid onerous penalties was involuntary. Id. at 306-07, 9 So.2d at 707. Payment pursuant to a bargain or compromise was voluntary, but payment under a mistake of fact was involuntary. Id. at 307, 9 So.2d at 707. The supreme court did take particular note of Union Pacific Railroad Company v. Commissioners, 98 U.S. 541, 25 L.Ed. 196 (1879) wherein a railroad that paid in full delinquent taxes while making a general protest against their legality and giving notice it would commence suit to recover was held to have paid involuntarily. In Seaway Corporation plaintiff’s payment was found to have been voluntary, because the payment had been made on a compromise.

We glean from Seaway Corporation that the notion that protest must accompany payment if the taxpayer is to be permitted to seek a refund is far from sacrosanct in Florida case law as set out by the supreme court. Seaway Corporation appears rather to say that the key is volun-tariness or involuntariness of the payment. It would thus be possible to say in the instant case that the association made clear the involuntariness of its payment by having first raised an appeal before the Adjustment Board; or, alternatively, that the true rule pertains to voluntariness rather than particular notice, and that the trial court should determine whether the association’s payment was voluntary.

Further authority for such suggestion is found in this court’s decision in Broward County v. Mattel, 397 So.2d 457 (Fla. 4th DCA 1981) which met — head on — the necessity for protest of an illegal tax under certain circumstances and held that protest was unnecessary if payment was made involuntarily. It further held that:

[a] payment of a tax is deemed involuntary where the penalty exacted for nonpayment is so severe that it constitutes coercion or duress. [Citations omitted.]

Id. at 460. On remand the court should give the parties the opportunity to make such amendments to the pleadings as the facts warrant in light of the foregoing.

Finally, to go to the end of-the line, there is yet another question if the whole notion of voluntariness is obsolete.

It is clear that section 195.106 of the Florida Statutes (1981) (renumbered in 1982 as section 197.0138) does not in terms authorize the courts to entertain suits of the instant kind whether payment of the taxes was voluntary or involuntary. The section states in part:

(l)(a) Except as provided in paragraph (b), the Department of Revenue shall pass upon and order refunds when payment has been made voluntarily or involuntarily of taxes assessed on the county tax rolls by reason of any of the following circumstances:
1. Any overpayment.
2. Payment when no tax was due.
3. When a bona fide controversy exists between the tax collector and the taxpayer as to the liability of the taxpayer for the payment of the tax claimed to be due, the taxpayer pays the amount claimed by the tax collector to be due, and it is finally adjudged by a court of competent jurisdiction that the taxpayer was not liable for the payment of the tax or any part thereof.
4. Any payment made in error by a taxpayer to the tax collector, provided that, within 24 months of the date of the erroneous payment and prior to any transfer of the assessed property to a third party for consideration, the party seeking a refund makes demand for reimbursement of the erroneous payment upon the owner of the property on which the taxes were erroneously paid and reimbursement of the erroneous payment is not received within 45 days of such demand. The demand for reimbursement shall be sent by certified mail, return receipt requested, and a copy thereof shall be sent to the tax collector.
(b) Those refunds which have been ordered by a court and those refunds which do not result from changes made in the assessed value on a tax roll certified to the tax collector shall be made directly by the tax collector without order from the department and from undistributed funds without approval of the various taxing authorities.

Clearly the statute sets forth a particular authority given the Department of Revenue and does not state the circuit court may do likewise. Nor does it state the circuit court may not do likewise. The fact the Department of Revenue is empowered to order county and municipal tax refunds whether the payment was made voluntarily or involuntarily raises the question whether the hoary and virtually ubiquitous court-made rule that payment under protest is a prerequisite to standing to sue remains viable. In particular circumstances, section 194.171 already provides an alternative.

The rationale behind the court-made rule evidently was that the county or other taxing authority needed notice that a refund might eventuate, so that it could put the disputed amount into a suspense account rather than spend it. See 72 American Jurisprudence Second State and Local Taxation § 1078 (1974). That rationale may not hold up in 1983 if the evidence reflects no such accounts to exist. More important, we find it anomalous that any individual, alone or in association, should be wronged by the state without recourse. This nation is an island of guaranteed life, liberty and property rights in a sea of repressive states.

GOLDMAN, MURRAY, Associate Judge, concurs.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting:

I would affirm upon authority of Willig v. Blake, 358 So.2d 871 (Fla. 3d DCA 1978).

      . These provide:
      (3) An amendment of a declaration is effective when properly recorded in the public records of the county where the declaration is recorded.

      (6) The common elements designated by the declaration may be enlarged by an amendment to the declaration. The amendment must describe the interest in the property and must submit the property to the terms of the declaration. The amendment must be approved and executed as provided in this section. The amendment divests the association of title to the land and vests title in the unit owners as part of the common elements, without naming them and without further conveyance, in the same proportion as the undivided shares in the common elements that are appurtenant to the unit owned by them.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The KEYES COMPANY, a Florida corporation, Appellant, v. Arthur F. SHERDEN and Mary E. Sherden, individually and as co-partners, Sherden Realty Associates, a partnership, Thomas H. Thurlow, Sr., Jane B. Thurlow, Thomas H. Thurlow, Jr., and Sandra Thurlow, Appellees.
    Nos. 83-374, 83-769.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    James Merola and G. Steven Brannock of Levy, Shapiro, Kneen & Kingcade, P.A., Palm Beach, for appellant.
    Paul B. Erickson of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellees.
   PER CURIAM.

We affirm summary judgment on the merits. See, Harding Realty, Inc. v. Turnberry Towers Corp., 436 So.2d 983 (Fla. 3d DCA 1983).

We reverse the award of attorney fees. Appellant’s entitlement to a commission was not irrevocably tied to the buyer’s specific performance action, Randolph v. Neeley, 185 So.2d 785 (Fla. 1st DCA 1966). Also, ambiguities as to when the commission was earned required judicial construction of the contract. Appellant’s case, though unmeritorious, was not so wholly frivolous as to support an award of attorney fees pursuant to Section 57.105, Florida Statutes (1981).

AFFIRMED IN PART and REVERSED IN PART.

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


author: ORFINGER, Chief Judge.

text:
    Larry Bernard HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1092.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1983.

      James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Chief Judge.

The issue on appeal is whether the trial court erred in denying defendant’s motion to suppress evidence seized during a war-rantless search. Defendant pleaded nolo contendere to armed burglary of a dwelling, reserving the right to appeal the denial of his motion. We affirm.

Orange County deputy sheriff Campbell responded to a disturbance call in the early morning hours of December 11, 1981. On arrival, the deputy was told by the complainant that she had been threatened by appellant and another man that they would “beat her and beat her bad.” She told the officer that she was frightened for her own safety and the safety of her children. While the deputy and another officer were discussing the threat with the complainant who was then sitting in the patrol car, a vehicle with two occupants inside approached, stopped, and then turned around. The complainant identified the occupants as the persons who had threatened her. With the complainant still in the patrol car, the deputy followed the vehicle for approximately one-quarter of a mile. When the car turned on to another street at a high rate of speed, Campbell turned on his emergency lights, and continued to pursue the vehicle until he finally overtook it and pulled the vehicle over.

Appellant’s passenger got out of the car first and was asked to produce identification. The deputy then walked up to the driver of the vehicle, defendant Larry Harrison, and asked him for his driver’s license. As Harrison exited the vehicle, Campbell looked down on the driver’s seat and saw a revolver on the seat where it would be concealed behind the driver. Harrison was arrested for carrying a concealed weapon.

The deputy then conducted a partial search of Harrison’s car which disclosed a second revolver under the passenger’s seat where the passenger had been seated. A subsequent search of the car revealed various rifles and appliances which connected the vehicle with a robbery in the vicinity. Within a couple of hours, the sheriff’s office was able to verify the stolen status of the property in the car.

Harrison contends that the evidence was illegally seized without a warrant in that there was no legal justification for the stop. Florida’s “Stop and Frisk Law,” section 901.151(2), Florida Statutes (1981), says in part:

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.

Under the statute, to justify a stop, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably justify the stop. State v. Webb, 398 So.2d 820 (Fla.1981). The totality of the circumstances should be taken into account in determining whether there is a reasonable suspicion that the individual being stopped is engaged in wrongdoing. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 490, 66 L.Ed.2d 621 (1981); State v. Jones, 417 So.2d 788 (Fla. 5th DCA 1982).

Specific and articulable facts were known to the officer here. The complaining party identified defendant and his companion as the persons who had threatened her with bodily harm. When the officer attempted to stop the car to investigate the complaint, a high speed chase ensued and the officer’s suspicions were heightened. These were not the circumstances present in McClain v. State, 408 So.2d 721 (Fla. 1st DCA 1982), pet. rev. dismissed 415 So.2d 1361 (Fla.1982), where the stop was made solely because the police officer had the impression that defendant and a companion were trying to avoid him when they crossed the street as they approached him.

Sub judice, the officer had received a direct complaint that defendant and his companion had committed the crime of assault. When he attempted to stop the persons identified as having committed the crime, they turned and ran. The eventual stop was lawful, and when appellant exited the vehicle, the firearm was plainly visible. Based on this “open view,” the officer had probable cause to believe that appellant had committed the crime of possessing a concealed firearm, to arrest him for that crime, and to seize the firearm based on the automobile exception to the warrant requirement. See Ensor v. State, 403 So.2d 349 (Fla.1981).

The trial court properly denied the motion to suppress, and, accordingly, the judgment of conviction is

AFFIRMED.

DAUKSCH and COBB, JJ., concur.


author: SHARP, Judge.

text:
    Wilton Allen DEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1349.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1983.

      Mark L. Horwitz, of Law Offices of Mark L. Horwitz, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Dedge appeals from judgments adjudicating him guilty of burglary with assault, two counts of sexual battery with a weapon, and aggravated battery. Because the eyewitness testimony identifying Dedge as the perpetrator of these crimes was equivocal, the errors at trial relating to his identification by a dog scent lineup cannot be considered harmless. Therefore, we reverse the judgments and remand this case for a new trial.

The state offered three means of identifying Dedge as the perpetrator: the victim’s testimony, a hair analysis, and a dog scent lineup. Shortly after her attack, the victim described her assailant as standing six feet to six feet two inches tall, and weighing one hundred sixty to two hundred pounds. Dedge’s height is approximately five feet five, and he weighs one hundred twenty-five pounds. A microanalyst for the Florida Department of Law Enforcement examined and compared hair samples found on the victim’s pillowcase and bed sheets with samples from Dedge. Although similarities were found, the expert witness could not say that the hair found on the sheets came from Dedge, but merely that Dedge “cannot be eliminated” as a suspect.

The primary identification of Dedge as the perpetrator of the crimes came through the activities of Harrass II, a highly trained and experienced police dog. Preston, an expert dog handler who has extensively participated in manhunts and lineups, and Harrass II, his purebred German shepherd, conducted a scent lineup in this case. This is apparently the first time a dog scent lineup has been discussed in an appeal in Florida. For this scent lineup, the victim’s sheets and four dirty sheets from the jail that Dedge did not use or touch, were placed in a lineup outside the presence of Preston and Harrass II. Har-rass II smelled the contents of a paper bag in which were paper towels used by Dedge. Preston then commanded Harrass II to search, and walked the dog down the lineup of sheets. During the second time Preston walked Harrass II down the lineup, after again telling the dog to search, Harrass II stopped and went over one of the sheets with his nose, which indicated to Preston that the scent Harrass II was looking for was on that sheet. That sheet was the victim’s sheet that Dedge had allegedly been on. Harrass II ignored the other sheets and again stopped at the same sheet in the lineup. Preston and Harrass II subsequently went to the victim’s home, and Harrass II also indicated that Dedge had been there by touching his nose to areas where he smelled Dedge.

Although the scent lineup was persuasive, there were two major errors committed at trial that relate to it. The first involved the disqualification of Sonny Bran-non, the defense’s only expert witness on human scent discrimination. The ability of a dog to identify human scents on objects at the crime scene more than three months after a crime is committed was a key point in this case.

Although Brannon was unavailable as a live witness, his testimony had been videotaped for the jury and judge to see and hear. The prosecutor challenged Bran-non’s qualifications as an expert in human scent discrimination. Both the prosecutor and the defense counsel argued as to what those qualifications were. Solely from listening to the arguments of counsel and without viewing the videotape proffer, the trial judge determined that Brannon did not qualify as an expert witness in human scent discrimination. However, “the question regarding an expert witness’ qualifications is a question of a fact to be decided by the trial court determined by the testimony adduced.” Upchurch v. Barnes, 197 So.2d 26, 28 (Fla. 4th DCA 1967) (emphasis added). The trial court’s failure to hear any testimony and to conduct a proper voir dire by reviewing the videotape of Brannon cannot be deemed harmless error in this case.

The second error was the improper admission of hearsay. On redirect examination, the state’s expert witness, Preston, was asked if L. Wilson Davis, an established author and expert in the field of human scent discrimination, had ever testified as to the reliability of Harrass II. Preston answered affirmatively. This testimony was only relevant to show that an out-of-court witness had vouched for the reliability of Harrass II to identify scents. See Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981). The defense also objected on the grounds that the question Went beyond the scope of the cross-examination. Both were valid objections. Since Harrass II’s abilities were the key to Dedge’s identification, the error is not harmless.

We reverse and remand this case for a new trial.

REVERSED AND REMANDED.

DAUKSCH and COBB, JJ., concur.

      . § 810.02(2)(a), Fla.Stat. (1981).

      . §§ 794.011(2) & (3), Fla.Stat. (1981).

      .§ 784.045(l)(b), Fla.Stat. (1981).


author: DAUKSCH, Judge.

text:
    James L. DINGESS, Appellant, v. FLORIDA AIRCRAFT SALES AND LEASING, INC., A Florida corporation, Appellee.
    No. 83-582.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1983.
    Leon M. Boyajan, II, of J. Russell Horns-by, P.A., Orlando, for appellant.
    Gary E. Massey, of Massey, Alper & Walden, Altamonte Springs, for appellee.
   DAUKSCH, Judge.

This is an appeal from an Order denying the appellant’s Motion for Leave to File Amended Complaint and a judgment on the pleadings. We find that the trial court abused its discretion by failing to grant the appellant at least one chance to amend his complaint. Townsend v. Ward, 429 So.2d 404 (Fla. 1st DCA 1983); Lewis v. Howanitz, 378 So.2d 310 (Fla. 3d DCA 1979); Ayers v. Home Owners Association of Killearn Estates, 360 So.2d 1326 (Fla. 1st DCA 1978). Leave to amend shall be given freely when justice so requires and it should not be denied unless the privilege has been abused or the complaint is clearly not amendable. Fla.R.Civ.P. 1.190(a).

REVERSED and REMANDED.

COBB, J., and DIAMANTIS, Associate Judge, concur.


text:
    Glen Wade CREWS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1085.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.

      Howard H. Babb, Jr., Public Defender, and Marty E. Moore, Asst. Public Defender, Ocala, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Crews appeals his conviction for dealing in stolen property. He argues the trial court erred in admitting at trial a videotape showing him in George’s Swap Shop, where the police were running a storefront “sting operation,” because it was of extremely poor quality. Crews also contends there was improper.contact between the jury, the bailiff, the prosecutor, and a state witness during jury deliberations. We affirm.

At the trial, the videotape was admitted into evidence and shown to the jury twice. The videotape was also used to refresh police officers’ memories. After the jury retired to deliberate, the trial judge and defense counsel left the courtroom. Subsequently, .the jury foreman returned to the courtroom and asked the bailiff to bring the videotape and television viewing equipment into the jury room. Because the bailiff had back problems, he asked a deputy who testified for the state, and who was present in the courtroom, to help him carry the equipment into the jury room. The deputy later testified that he merely carried the television into the jury room, set it on the table, and walked out.

Defense counsel walked into the courtroom at that moment and objected to the proceedings. The prosecutor then said to the foreman:

Oh, wait a minute. We might not be able to do this because Ms. Mayden has an objection that she wants to make to the Judge.

The trial judge returned to the courtroom and took testimony concerning the incident. He then denied defense counsel’s motion for mistrial, which was based on the grounds the deputy entered the jury room after the jury commenced its deliberations.

We have reviewed the videotape, and we do not find it of such poor quality that it should not have been admitted at trial. See Odom v. State, 403 So.2d 936 (Fla.1981). The audio portions of the tape are incomprehensible at numerous points, but the video is of sufficient clarity to be able to identify persons appearing on the screen. Cf. Springer v. State, 429 So.2d 808 (Fla. 4th DCA 1983). The video combined with the partial audio constitute substantial evidence against Crews. In view of our conclusion on this point, we do not find reversible error on the part of the trial judge in not having first previewed the videotape outside the presence of the jury before ruling on its admission. That, of course, would have been the best procedure.

Appellant also argues reversible error was committed in the contact between the bailiff, the witness and the jury. He cites Ivory v. State, 351 So.2d 26 (Fla.1977), as establishing a per se rule that any unauthorized contact “with the jury outside the presence of the prosecutor, the defendant, and defendant’s counsel is so fraught with potential prejudice that it cannot be considered harmless.” Id. at 28. Ivory involved a violation of Florida Rule of Criminal Procedure 3.410. In Ivory, the trial court responded through the bailiff to the jury’s inquiries about additional instructions and documents in evidence, outside the presence of the attorneys and the defendant. However, this case does not involve a violation of rule 3.410. The jury did not request additional instructions, or to have testimony read to them. Rather, they requested that the videotape, which was admitted into evidence, be furnished to them, as they had every right to do. Fla.R. Crim.P. 3.400.

Appellant also argues the contact between the bailiff, the witness and the jury violated section 918.07, Florida Statutes (1981). That section provides:

When the jury is committed to the charge of an officer, he shall be admonished by the court to keep the jurors together in the place specified and not to permit any person to communicate with them on any subject except with the permission of the court given in open court in the presence of the defendant or his counsel. The officer shall not communicate with the jurors on any subject connected with the trial and shall return the jurors to court as directed by the court.

It is not clear that an improper communication with jurors automatically mandates a new trial. Some courts have held that a showing of prejudice must be made, but others conclude reversible error occurred whether or not the communication was legally correct and not harmful, or unknown.

The distinguishing fact in this case is that no communication was shown to have occurred between the bailiff, the deputy and the jurors. In furnishing the jury with an item in evidence and the mechanism to enable them to see it, the bailiff was acting properly. Degeer v. State, 349 So.2d 713 (Fla. 2d DCA 1977). The accomplishment of physical transportation by the deputy because the bailiff had a bad back does not change the result here.

Although there was a communication by the prosecutor to the jury foreman, we do not think it requires a reversal. At most he said the tape and television could not be furnished to the jury until the court made a ruling on defense counsel’s objection. The comments are not substantive, and they merely delayed the jury’s consideration of evidence admitted at trial. We do not think section 918.07 was violated. State v. Hunter, 358 So.2d 50 (Fla. 4th DCA 1978). The judgment appealed is therefore

AFFIRMED.

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

      . § 812.019, Fla.Stat. (1981).

      . After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them such additional instructions or may order such testimony read to them. Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.
      Fla.R.Crim.P. 3.410.

      . See generally Davis v. State, 408 So.2d 795 (Fla. 2d DCA 1982); Flowers v. State, 348 So.2d 602 (Fla. 4th DCA 1977); Randolph v. State, 336 So.2d 673 (Fla. 2d DCA 1976); Slinsky v. State, 232 So.2d 451 (Fla. 4th DCA 1970).

      . Walt Disney World Co. v. Althouse, 427 So.2d 1135 (Fla. 5th DCA 1983); Ennis v. State, 300 So.2d 325 (Fla. 1st DCA 1974); see Degeer v. State, 349 So.2d 713 (Fla. 2d DCA 1977).

        . Caldwell v. State, 340 So.2d 490 (Fla. 2d DCA 1976); Randolph v. State, 336 So.2d 673 (Fla. 2d DCA 1976); Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA 1960).


author: DENNIS, J., MARCUS, J.,

text:
    Application of Andreas RESPONDEK for Permission to be Admitted as a Member of the Louisiana State Bar Association.
    No. 83-OB-2169.
    Supreme Court of Louisiana.
    Oct. 20, 1983.
   Application granted. This Court interprets its rule (Section 7 of Art. XIY of the Articles of Incorporation of the Louisiana State Bar Association) to mean that a “resident alien” is an alien who is lawfully residing in the United States. Thus interpreted the rule does not violate In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973).

DENNIS, J.,

concurs in granting relator’s application for permission to be admitted as a member of the Louisiana State Bar Association.

MARCUS, J.,

dissents from the order, being of the opinion that relator should first be qualified as a “resident alien” as defined in the immigration statutes before being admitted to the Louisiana State Bar.

BLANCHE, J., dissents.


author: LEMMON, Justice. CALOGERO, Justice, DENNIS, Justice, BLANCHE, Justice

text:
    Cindy TAYLOR, et al., v. William R. TANNER, II, et al.
    No. 83-C-0170.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Dissenting Opinion Dec. 21, 1983.
    Rehearing Denied Jan. 13, 1984.

      Louis D. Bufkin, Michael K. Dees, McHa-le, Bufkin & Dees, Lake Charles, for applicants.
    David R. Frohn, Randy J. Fuerst, Camp, Carmouche, Palmer, Barsh & Hunter, Lake Charles, for respondents.
   LEMMON, Justice.

This is a wrongful death action by the beneficiaries of the tort victim against Home Indemnity Insurance Company under the uninsured motorist coverage of an automobile liability policy issued to the tort victim’s employer. Home obtained a summary judgment dismissing plaintiffs’ claim on the basis that plaintiffs were not entitled to further recovery, having compromised with the underinsured tortfeasor’s liability insurer and having accepted payment of policy limits from the primary uninsured motorist insurer and from one excess uninsured motorist insurer, as defined by La.R.S. 22:1406D(l)(c). The issue is whether the stacking limitation of Subsection 1406D(l)(c) precludes plaintiffs under these circumstances from choosing to recover under Home’s excess uninsured motorist coverage, which provided higher limits than the other applicable excess policy.

According to stipulated facts, the tort victim sustained fatal injuries while occupying a vehicle operated by Bryon Champagne, when that car was struck from the rear by a truck owned and operated by William Tanner. The Tanner vehicle was covered by a liability policy with limits of $10,000, and the Champagne vehicle was covered by a liability policy with uninsured motorist limits of $5,000. Additionally, the tort victim owned a vehicle covered by a liability policy with uninsured motorist limits of $10,000. After suit was filed by the tort victim’s widow and three minor children, the plaintiffs collected under the coverages of the three abovementioned policies in the total amount of $25,000, signing restrictive releases and reserving their rights against Home, whose coverage and limits had not yet been determined. The parties further stipulated that plaintiffs’ damages exceed $25,000.

Home then filed a motion for summary judgment on the ground that the plaintiffs were barred from further recovery by the anti-stacking provisions of Subsection 1406D(l)(c). The trial court granted the motion. The court of appeal affirmed, holding that the express wording of the statute prevented the plaintiffs from recovering under the Home Indemnity policy after they had “selected” the excess coverage under another policy. 422 So.2d 1338. We granted certiorari. 429 So.2d 141.

This court has previously considered the anti-stacking provision of Subsection 1406D(l)(c). In Courville v. State Farm Mut. Auto Ins. Co., 393 So.2d 703 (La.1981) and Nall v. State Farm Mut. Auto Ins. Co., 406 So.2d 216 (La.1981), we noted that the subsection states the general rule that the “limits of uninsured motorist coverage shall not be increased” because an insured has insurance available to him under more than one uninsured motorist provision or policy. We recognized, however, that the subsection also contains a limited exception to the general prohibition against stacking and permits a party, who is injured while occupying a non-owned automobile, to recover first under the uninsured motorist coverage of the vehicle in which he was an occupant as primary coverage and then under one additional uninsured motorist “coverage available to him”. See McKenzie, Louisiana Uninsured Motorist Coverage— After Twenty Years, 43 L.La.Rev. 691, 719 (1983). Only under this exception may the “limits of uninsured motorist coverage” be increased on account of the availability of more than one uninsured motorist coverage provision or policy.

In the present ease, the tort victim at the time of the accident was occupying a non- . owned vehicle, and the damages exceeded the primary uninsured motorist coverage. Consequently, plaintiffs fall within the limited exception to the general rule against stacking, and Subsection 1406D(l)(c) expressly entitles plaintiffs to recover under one uninsured motorist coverage on top of the primary coverage on the Champagne vehicle. However, this case differs from the case in which the claimant attempts to stack two $10,000 excess coverages in order to recover the combined total of both. Here, there are two excess coverages, one with $10,000 limits and one with higher limits, and plaintiffs are attempting to recover the amount of the policy with the higher limits.

The purpose of the limitation of Subsection 1406D(l)(c)(ii) is to prevent a claimant from recovering more than the limits of any one of several excess uninsured motorist coverage provisions or policies available to him. Nevertheless, the claimant should be able to choose the provision or policy with the highest limits. The only question in this case is whether plaintiffs’ decision to collect the proceeds of one excess policy tendered by that insurer was an irrevocable election which precludes recovery when plaintiffs later determined that another excess policy has higher limits.

Here, plaintiffs accepted the policy limits tendered by one excess insurer and reserved their rights against Home, while awaiting a determination during protracted litigation about possible coverage available under Home’s policy. In such a situation, the logical conclusion is that the interim acceptance constituted a conditional acceptance, pending a determination of whether the other excess insurer provided coverage with greater limits.

It would be unrealistic to require a widowed mother with three young children either to accept the tendered policy limits at the peril of losing her rights to higher limits of another policy or to refuse the funds while pursuing extensive litigation concerning the coverage or the limits of the other policy. We do not believe that the Legislature, by enacting a statute which limits stacking, intended to prohibit a claimant from conditionally accepting the tendered limits of a known excess policy with undisputed coverage and then litigating to determine whether another policy affords coverage with greater limits. Such an interpretation would be directly contrary to the primary objective of the uninsured motorist scheme — to protect innocent victims of the negligence of financially irresponsible motorists by providing such victims with full recovery. Booth v. Fireman’s Fund Insurance Company, 218 So.2d 580 (La.1968); Bond v. Commercial Union Assurance Company, 407 So.2d 401 (La.1981). The result reached by the lower courts also penalizes the excess insurer who immediately tenders payment and rewards the excess insurer who is dilatory or evasive.

Therefore, plaintiffs’ acceptance of the policy limits from one uninsured motorist carrier should not be deemed to constitute an implied choice or election to reject the limits from other policies that may be available to them. Payment by the other excess insurer is irrelevant to Home’s liability, as long as the amount of recovery of excess uninsured motorist coverage does not exceed the limits of the highest excess policy which is ultimately determined to be available to plaintiffs.

We conclude that plaintiffs may proceed against Home’s uninsured motorist coverage at a trial on the merits. As long as there is no ultimate recovery which increases the limits of available excess uninsured motorist coverage beyond that provided by any one policy, Subsection 1406D(l)(c) is not violated, and the purpose of uninsured motorist insurance is fulfilled.

For the foregoing reasons, the summary judgment is reversed, and the matter is remanded for trial on the merits.

CALOGERO and DENNIS, JJ., concur and assign reasons.

BLANCHE, J., dissents and assigns reasons.

MARCUS, J., dissents for reasons assigned by the Court of Appeal.

CALOGERO, Justice,

concurring.

The majority seems to rely substantially upon the fact that Home’s coverage and limits had not been discovered by plaintiffs at the time they settled with Mr. Taylor’s uninsured motorist carrier, State Farm Mutual Insurance Company. While the record is not entirely clear I’m not at all satisfied that this is the case. Counsel for plaintiffs have attached to their supplement to the application for writ a designated exhibit “W”, which is a release of State Farm Mutual Automobile Insurance Company, and that document is dated December 10, 1981, which is at least one month after the complete policy of Home’s was furnished plaintiffs’ counsel. Nonetheless I concur in the majority’s resolution because I don’t believe that it makes a difference to the plaintiffs’ rights against Home in this case, that they may have settled with an excess UM carrier at a time when they knew or should have known of the existence of the additional policy with Home.

DENNIS, Justice,

concurring.

I respectfully concur.

I disagree with the majority’s view that Subsection 1406D(l)(c) is not violated as long as there is no ultimate recovery of a greater value than the highest limits of any one available excess uninsured motorist policy. This ruling permits, inter alia, pro-ration of the proceeds from multiple policies. While I agree that an insured may conditionally opt for one uninsured motorist coverage and later elect to refund those proceeds in favor of a larger coverage, I believe that Subsection 1406D(l)(c) expressly forbids recovery from more than one policy.

BLANCHE, Justice

(dissenting).

The express provisions of the “anti-stacking” statute, R.S. 22:1406(D)(1)(c), prevents plaintiff from stacking the Home Indemnity policy, having already collected the limits of uninsured motorist coverage on two other policies. In this writer’s opinion, plaintiffs were simply unaware of the foregoing statutory provision when they unconditionally accepted the proceeds of the policies.

I respectfully dissent.

      . The policy covered a vehicle furnished to the tort victim by his employer for use in his employment. The vehicle was owned by the employer and was not involved in the accident.

      . La.R.S. 22:1406D(l)(c) provides:
      “(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
      "with respect to bodily injury to an insured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
      "(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;

      "(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant." (Emphasis supplied)

      . The joint stipulations of fact, which through inadvertence were not filed of record until after rendition of the summary judgment, do not refer to the date that plaintiffs determined the limits of Home’s uninsured motorist coverage. However, the record indicates that plaintiffs requested production of Home’s policy on March 4, 1981, the same date that Home was joined as a defendant in the action on the November, 1980 accident. The record further indicates that Home filed an answer on June 1, 1981, admitting issuance of a policy, but denying liability thereunder; that plaintiffs on June 17, 1981, filed a motion to compel production of the policy; that Home produced parts of the policy, but did not produce a certified copy of the entire policy until after plaintiffs on November 3, 1981 filed a rule to invoke sanctions for failure to comply; and that plaintiffs had already collected the proceeds of the three policies when Home finally produced the complete policy.

      . Plaintiffs contend that Home’s policy has an uninsured motorist limit of $500,000. Home asserts that the policy limit is actually $30,000. That dispute is not material to the question of law adjudicated by the summary judgment.

      . If there is a dispute as to coverage under the second excess policy which cannot be resolved without extensive litigation, certainly the claimant should not be prohibited from accepting conditionally the tendered limits of the lesser policy and litigating the coverage issue on the policy with higher limits.

      .Compare Biondelillo v. Geosource, 359 So.2d 286 (La.App. 4th Cir.1978), concerning the election of remedies by a claimant entitled to either federal or state compensation benefits, but not both.

      . At the trial on the merits, the trial court may be called upon to decide whether plaintiff will have to refund the amount previously accepted from the other excess insurer, or whether the total amounts of available excess insurance must be prorated so as to award the highest limit provided by any one policy, or whether Home is simply entitled to some sort of credit. Or perhaps the trial court may order some other disposition. We need not address this issue in our present review of a summary judgment denying plaintiffs the right to proceed against Home.


author: LEMMON, J.,

text:
    Henry LANDRY, Sr. v. AETNA INSURANCE COMPANY, et al. Lonnie LANDRY v. AETNA INSURANCE COMPANY, et al.
    No. 83-C-2303.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In Re: Henry Landry, Sr. and Lonnie Landry, applying for Writ of Certiorari or Review, to the Court of Appeal, Fourth Circuit, No. 12593; Parish of Orleans, Civil District Court, No. 78-648.

Case Below: 438 So.2d 628.

Granted. Reversed and remanded to the court of appeal to reconsider. The “law of the case” doctrine is a “discretionary guide” and has no application when an appellate court reviews a ruling of the district court or when there is palpable error in a prior ruling. See CCP 2164, comment (a), and Petition of Sewerage & Water Board of New Orleans, La., 278 So.2d 81.

MARCUS and WATSON, JJ., would deny and dissent from the order.

LEMMON, J.,

concurs with reasons. Our inadvertent denial of certiorari on the issue of Lonnie Landry’s negligence in the consolidated case causes complications in the present case. However, the fact that the judgment in the consolidated ease is now definitive does not preclude an independent determination of Lonnie Landry’s demands in this case.


author: PER CURIAM:

text:
    STATE of Louisiana v. Ray A. PEMBERTON.
    Nos. 83-KA-1259, 83-KA-1260.
    Supreme Court of Louisiana.
    Dec. 16, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William C. Credo, III, Clarence McManus, Kerry Hogan, James Maxwell, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Provino Mosca, Tucker & Schonekas, New Orleans, for defendant-appellant.
   PER CURIAM:

Defendant was charged by grand jury indictment with aggravated rape in violation of La.R.S. 14:42. In separate bills of information, he was also charged with aggravated crime against nature (two counts), La.R.S. 14:89.1, incest, La.R.S. 14:78, and cruelty to juveniles, La.R.S. 14:93. On June 2, 1981, defendant entered pleas of guilty to a reduced charge of forcible rape (No. 83-KA-1260) and one count of aggravated crime against nature (No. 83-KA-1259). In return, the state dismissed the second count of aggravated crime against nature and the other bills of information. On August 19, 1981, the trial court sentenced defendant to forty (40) years’ imprisonment at hard labor for the rape offense, and to fifteen (15) years at hard labor on the count of aggravated crime against nature, the penalties to run consecutively. The court also specified that defendant will serve the first two years of his sentence for the rape offense without benefit of parole. Defendant has now appealed his convictions and sentences to this Court, urging the single assignment of error filed below.

We have reviewed defendant's claim that forcible rape was not an offense at the time he committed the acts charged against him from January to August of 1978 and find that it lacks merit. The transcript of the Boykin colloquy on June 2, 1981, shows clearly that the trial court read the definition of the offense to defendant from La.R.S. 14:42.1, a statute that did not come into effect until after the alleged rape was committed in that same year. Acts 1978, No. 239 (eff. September 8, 1978). Nevertheless, the legislature added the offense of forcible rape to the Criminal Code in 1975. Acts 1975, No. 333; La.R.S. 14:43.1. Subsequent amendments have increased the penalties for the offense and, in 1978, led to the renumbering of the statute in the Code as R.S. 14:42.1. Acts 1977, No. 90; Acts 1978, No. 239. The essential elements of the offense, however, have remained unchanged since the original enactment in 1975. Defendant was therefore fully on notice of what conduct the legislature had proscribed as forcible rape when he committed the offense in 1978. See, State v. Curtis, 363 So.2d 1375 (La.1978).

Nevertheless, the trial court’s mistake has led to an illegal restriction on defendant’s parole eligibility that requires correction. La.C.Cr.P. art. 882; cf., State v. Boowell, 406 So.2d 213 (La.1981); State v. Delaney, 359 So.2d 976 (La.1978); State v. Siegel, 354 So.2d 525 (La.1978). At the time of the offense, La.R.S. 14:43.1 provided that “[w]hoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years.” When it reenacted the statute in 1978 as La.R.S. 14:42.1, the legislature kept the same penalty range, but added that “[a]t least two years of the sentence imposed shall be without benefit of probation, parole or suspension of sentence.” That amendment became effective after defendant’s offense, however, and may not be applied in this case to his disadvantage. State v. Curtis, supra.

Accordingly, defendant’s convictions for both offenses, and his sentence for aggravated crime against nature, are affirmed, but his sentence for forcible rape is vacated and the case is remanded to the trial court for resentencing in accord with the law.

CONVICTION AND SENTENCE FOR AGGRAVATED CRIME AGAINST NATURE AFFIRMED; CONVICTION FOR FORCIBLE RAPE AFFIRMED BUT THE SENTENCE IS VACATED AND CASE REMANDED.

      . In response to a request by defendant’s trial attorney, the district court vacated the plea to forcible rape on March 17, 1982. It left standing defendant's conviction and sentence on the charge of aggravated crime against nature. On September 14, 1982, the trial court then withdrew its order of the previous March, and reinstated defendant’s 40 year sentence for forcible rape. Because the trial court acted with the express consent of defendant, and counsel does not complain of the action on appeal, we express no opinion with regard to the trial court’s authority to reinstate the conviction and sentence for forcible rape in this manner. Cf., State v. Neames, 377 So.2d 1018 (La.1979).


author: LEMMON, Justice.

text:
    STATE of Louisiana v. James Mitch PATTERSON.
    No. 82-KA-2099.
    Supreme Court of Louisiana.
    Dec. 20, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Blake, Dist. Atty., George H. Meadors, Asst. Dist. Atty., for plaintiff-appellee.
    W. Eugene Golden, Susan D. Scott, Shreveport, for defendant-appellant.
   LEMMON, Justice.

This appeal presents the question of whether a trial court can suspend part of a felony sentence of imprisonment at hard labor conditioned upon the payment of restitution. We hold that our law does not authorize the imposition of such a sentence and remand for resentencing.

As a result of a plea bargain, defendant pleaded guilty to an amended indictment charging him with aggravated battery. La.R.S. 14:34. After a presentence investigation, the trial judge sentenced defendant to eight years imprisonment at hard labor. However, the judge further ordered that two of the eight years be suspended, conditioned upon defendant’s making restitution to the victim in the amount of $6,215 within two years of the date of imposition of sentence. Defendant appealed, contending among other things that the sentence was illegal.

The code articles dealing with the imposition of sentence in felony cases in Louisiana do not permit the imposition of a “split sentence”. See La.C.Cr.P. Arts. 871, 874, 879, 881, 884, 893-895.1. Neither do the code articles permit the ordering of restitution in felony cases in which a sentence of imprisonment is imposed. See La.C.Cr.P. Arts. 895 and 895.1; State v. Hernandez, 432 So.2d 350 (La.App. 1st Cir.1983).

The sentencing judge cannot impose a sentence at hard labor and order that part of that sentence be suspended if certain probationary conditions are met. Compare La.C.Cr.P. Arts. 893 and 894. See also La.C.Cr.P. Art. 895. Article 894, which authorizes the suspension of sentence in misdemeanor cases, does permit the sentencing judge to suspend “the whole or any part of the sentence imposed”. The Legislature chose not to provide this option in enacting La.C.Cr.P. Art. 893, which grants the trial judge the authority to suspend sentences in certain felony cases. The difference in the language of the two code articles reveals a legislative choice to permit this sort of “split sentence” only in misdemeanor (and not in felony) cases. Similarly, the trial judge in misdemeanor cases may modify a previously imposed sentence of imprisonment to grant probation, but may not do so in felony cases. Compare La.C.Cr.P. Art. 894 with La.C. Cr.P. Art. 881 and 893 D.

We conclude that when a trial judge decides to sentence a defendant to a term of imprisonment in the state penitentiary without suspending the sentence, the judge cannot control the length of the period of actual incarceration. The comments to Article 881 evidence a legislative intent in felony cases to leave the question of “early release” to the parole authority under legislation dealing with parole eligibility. See La.R.S. 15:574.2 and the following articles.

Accordingly, the sentence is set aside as illegal and the case is remanded for resen-fencing in accordance with law. See State v. Guajardo, above.

      . Defendant had stabbed a man in the back with a lock-bladed hunter’s knife, causing severe injury-

      . In felony cases in which a defendant is imprisoned for his crime, the parole board may order restitution for the victim as a condition for granting parole. See La.R.S. 15:574.4 J.

      . La.C.Cr.P. Art. 895 B authorizes the trial judge, upon suspending the entire sentence in a felony case and placing the defendant on probation, to order defendant to serve a term of imprisonment without hard labor as a condition of probation.

      .La.C.Cr.P. Art. 893 D specifically prohibits the trial judge from suspending a felony sentence after the execution of that sentence has begun. See State v. Guajardo, 428 So.2d 468 (La.1983).

      . On recommendation of the Louisiana State Law Institute, the Legislature in 1974 explicitly authorized trial judges to impose a jail sentence under La.C.Cr.P. Art. 895 B as a condition of probation in felony cases. See Acts 1974, No. 211, authorizing a one-year jail sentence as a condition of probation, and Acts 1982, No. 27, which extended the period to two years. Nevertheless, in such a felony case, the principal sentence of imprisonment is suspended, and the specified term of jail confinement ("imprisonment without hard labor”) is clearly designated as a condition of probation imposed under La.C. Cr.P. Art. 895 B.

      . We expressly do not consider defendant’s complaint regarding excessiveness of sentence or failure to comply with La.C.Cr.P. Art. 894.1. Since the sentence was illegal and the defendant must be resentenced, it would be premature to consider issues which might not arise from the sentence to be imposed on remand.


text:
    Jacqueline CARR v. James H. BROWN, Secretary of State, State of Louisiana, et al.
    No. 83-C-2074.
    Supreme Court of Louisiana.
    Oct. 6, 1983.
   In re Jacqueline Carr, applying for writ of certiorari. First Circuit Court of Appeal. Twenty-Second Judicial District Court, Parish of St. Tammany. No. 76075.

Denied.

LEMMON, J., would grant the writ.


text:
    Jacqueline CARR v. Honorable James H. BROWN, Secretary of State, State of Louisiana.
    No. 83-CC-2075.
    Supreme Court of Louisiana.
    Oct. 6, 1983.
   In re Jacqueline Carr, applying for writ of certiorari and/or review. First Circuit Court of Appeal. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 269-284.

Denied.

LEMMON, J., would grant the writ.


text:
    Jacqueline CARR v. James H. BROWN, Secretary of State, State of Louisiana, et al.
    No. 83-C-2095.
    Supreme Court of Louisiana.
    Oct. 11, 1983.
   In re Jacqueline Carr, applying for writ of certiorari. First Circuit Court of Appeal. Parish of St. Tammany, Twenty-Second Judicial District Court. No. 76075.

Denied.

LEMMON, J., concurs. The judgment in this case is final and definitive. C.C.P. Art. 2167.


text:
    Janet G. FURTADO v. ALTON OCHSNER MEDICAL FOUNDATION, Argonaut Insurance Companies and XYZ Insurance Company.
    No. 83-CC-1542.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Alton Ochsner Medical Foundation, Argonaut Insurance Companies, applying for reconsideration on granted writ with order, dated September 30, 1983, 439 So.2d 1069, formerly Fourth Circuit Court of Appeal. No. 11938. Now Fifth Circuit, Court of Appeal. Twenty fourth Judicial District Court, Parish of Jefferson. No. 164889.

Denied.


text:
    STATE of Louisiana v. Alfred R. HILL.
    No. 83-KH-2349.
    Supreme Court of Louisiana.
    Nov. 16, 1983.
   In re Alfred R. Hill, applying for writ of certiorari. Criminal District Court, Parish of Orleans. No. 294-298.

Granted for the sole purpose of transferring application to the district court for action.


text:
    STATE of Louisiana, ex rel., Bobby GLOVER v. JUDGE, SECTION “H”, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 83-KH-2106.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Bobby Glover, applying for writ of mandamus. Parish of Orleans. No. 251-178.

Denied. Moot.


text:
    TARTAN TRANSPORT & CONSTRUCTION COMPANY, LTD. v. Mr. and Mrs. Robert McDONALD.
    No. 83-C-2122.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Sharon Nolan, wife of Robert McDonald, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Twenty-second Judicial District Court, Parish of St. Tammany. No. 70364.

Denied.


text:
    Mary Matranga LICATA, Mary Lee Power, wife of/and Nicholas B. Licata, Jr. v. Helen J. WHITTENBURG, wife of/and John A. Beninate.
    No. 83-C-2154.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Helen J. Whittenburg, Wife of/and John A. Beninate, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit. Twenty-Fourth Judicial District Court, Parish of Jefferson. No. 263-805.

Denied.


text:
    SOUTHWEST LOUISIANA GRAIN, INC. v. HOWARD A. DUNCAN, INC., et al.
    No. 83-C-2160.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Bituminous Fire and Marine Insurance Company, applying for writ of certio-rari or review. Court of Appeal, Third Circuit. Fifteenth Judicial District Court. No. 47895. Parish of Acadia.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Robert T. MYLES v. Honorable Frank A. MARULLO, Jr., Criminal District Court, Section “D”, Parish of Orleans.
    No. 83-KH-2195.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Robert T. Myles, applying for remedial writs. Criminal District Court, Parish of Orleans. No. 265-242.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Larry Dale STEGALL v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-2276.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Larry Dale Stegall, applying for writ of certiorari. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 9-78-383.

Denied.

BLANCHE, J., Recused.


text:
    STATE of Louisiana v. Rodney BECNEL.
    No. 83-KH-0249.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Rodney Becnel, applying for reconsideration of denied writ of March 4, 1983, 429 So.2d 156, Criminal District Court, Parish of Orleans. No. 268-184.

Denied.


text:
    STATE of Louisiana ex rel. Chester FRAZIER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0022.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Chester Frazier, applying for reconsideration of denied writ of September 16, 1983, 437 So.2d 1138, First Judicial District Court. No. 114558. Parish of Caddo.

Denied.


text:
    Antonio JAMES v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KD-2372.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Antonio James, applying for stay of execution, and supervisory writs, and writ of habeas corpus. Criminal District Court, Parish of Orleans. No. 271-107 Section “H”.

Denied.


text:
    STATE of Louisiana ex rel. Billy Ray MILBY v. SECRETARY, DEPARTMENT OF CORRECTIONS, John T. KING et al.
    No. 83-KH-1840.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Billy Ray Milby, applying for remedial writ. First Circuit Court of Appeal, Parish of East Baton Rouge. No. 83-CW-0747. Nineteenth Judicial District Court.

Granted. Forma Pauperis action permitted.


text:
    STATE of Louisiana, ex rel., Larry Anthony BROYARD v. Edwin A. LOMBARD, etc.
    No. 83-KH-2258.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Larry Anthony Broyard, applying for supervisory and remedial writs, and writ of mandamus. Criminal District Court. Nos. 277-289 and 277-302. Parish of Orleans, Fourth Circuit Court of Appeal. No. K 1465.

Granted. The trial court is ordered to furnish relator a transcript of his guilty plea. This Court’s policy of furnishing transcripts of guilty pleas was not affected by State v. Bland, 419 So.2d 1227 (La.1982).


text:
    STATE of Louisiana v. Robert L. COUVILLION.
    No. 83-KK-2080.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Robert L. Couvillion, applying for writ of certiorari/review. Third Circuit Court of Appeal. No. K83-437. Ninth Judicial District Court, Parish of Rapides. Nos. 205604 and 205605.

Not considered. Untimely.


text:
    STATE of Louisiana, ex rel., Ignatius RED v. The CRIMINAL DISTRICT COURT, SECTION “D”, ORLEANS PARISH.
    No. 81-KH-1850.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Ignatius Red, applying for writ of mandamus. Parish of Orleans. No. 241-738.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Ira HOLLINS v. Honorable Ted R. BROYLES, Judge, the Thirtieth Judicial District Court, Parish of Vernon, State of Louisiana.
    No. 82-KH-0543.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Ira Hollins, applying for writ of mandamus. Parish of Vernon. No. 29500.

Denied. Moot.


text:
    STATE ex rel., Albert T. WATERMAN v. J.D. Middle BROOKS (Warden of the D.O.C.).
    No. 82-KH-2651.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Albert T. Waterman, applying for writ of mandamus and certiorari. Parish of Livingston. No. 3172.

Denied.


text:
    STATE of Louisiana, ex rel. Harold Joseph VINCENT v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0269.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Harold Joseph Vincent, applying for writ of habeas corpus. Parish of Vernon. No. 23808.

Denied.


text:
    STATE of Louisiana ex rel., Isidore A. JONES v. Franklin E. WOODRUFF, Warden, Work-Training Facility/South at Jackson Barracks, N.O., Louisiana.
    No. 83-KH-1148.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Isidore A. Jones, applying for writ of mandamus. Parish of Jefferson.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Rick R. LANDRY v. Honorable Lucien C. BERTRAND.
    No. 83-KH-1371.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Rick R. Landry, applying for writ of mandamus. Judicial District Court, Parish of Lafayette. No. 67011.

Denied.


text:
    James Patrick PRICE v. FELICIANA FACILITY DEPARTMENT OF HEALTH AND HUMAN RESOURCES.
    No. 83-CC-2101.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re James Patrick Price, applying for writ of certiorari. First Circuit Court of Appeal. No. 83-CW-0953. Civil Service Commission, Parish of East Baton Rouge. Nos. 3397 and 3494.

Denied.


text:
    STATE of Louisiana v. Rafael HERNANDEZ.
    No. 83-KK-2131.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Rafael Hernandez, applying for writ of certiorari, prohibition and mandamus. Criminal District Court, Parish of Orleans. Section “G”, No. 292-848. Fourth Circuit Court of Appeal. No. K-0912.

Denied.


text:
    STATE of Louisiana v. Debra NICKELSON.
    No. 83-KK-2153.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Debra Nickelson, applying for writ of certiorari. Eleventh Judicial District Court, Parish of DeSoto. No. 50539. Court of Appeal, Second Circuit. No. 15841-KW.

Denied.


text:
    STATE of Louisiana v. Leon McDONALD.
    No. 83-KH-2264.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Leon McDonald, applying for supervisory writs. Sixteenth Judicial District Court, Parish of St. Mary.

Denied on showing.


text:
    Prince WILLIAMS, on behalf of his minor son, Mark L. Williams, v. Jack KUSHNER and Drs. Jack Kushner and Herman R. Cohen, a Professional Medical Corporation, Sherman Bernard in his Capacity as Commissioner of Insurance for the State of Louisiana.
    No. 83-CD-2310.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Prince Williams, applying for remedial writs. Civil District Court, Parish of Orleans. No. 83-1115.

Denied.


text:
    SUCCESSION OF Lem IRVING, Sr. and Susie McKnight Irving.
    No. 83-C-2103.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Roscoe Irving, applying for writ of certiorari, or review. Court of Appeal, First Circuit. Parish of Tangipahoa, Twenty-First Judicial District Court. No. 7897.

Denied.


text:
    CITY OF NEW ORLEANS, Blake G. Arata, David Cressy, Jacob Taranto, III and State of Louisiana, Individually and as Members of a Class and New Orleans Public Service, Inc. v. UNITED GAS PIPE LINES COMPANY.
    No. 83-CC-2081.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re City of New Orleans, et al., applying for supervisory and remedial writs of certiorari prohibition, mandamus or review. Fourth Circuit Court of Appeal. Civil District Court, Division “J”, Parish of Orleans. No. 575-544 and 579-040.

Denied.


text:
    Donald J. THORESON, et al. v. DEPARTMENT OF STATE CIVIL SERVICE.
    No. 83-C-1704.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Department of State Civil Service, applying for reconsideration on a denied writ of October 7, 1983, 440 So.2d 726, First Circuit Court of Appeal. Civil Service Commission, Baton Rouge Parish. No. 2404.

Reconsideration denied.


text:
    George G. RUE v. BOARD OF TRUSTEES OF the CITY OF ALEXANDRIA EMPLOYEES RETIREMENT SYSTEM.
    No. 83-C-2180.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re George G. Rue, applying for certio-rari, or writ of review. Court of Appeal, Third Circuit. Ninth Judicial District Court, Parish of Rapides. No. 123533.

Denied.


text:
    Dr. Gladys W. MILLINER v. Jesse L. TURNER, Raymond Seraile, Michael Williams and Ronald J. Marshall v. SOUTHERN UNIVERSITY IN NEW ORLEANS. Dr. Willene P. TAYLOR, Married Wife of Jesse F. Taylor v. Jesse L. TURNER, Raymond Seraile, Michael Williams, Ronald J. Marshall and Miss Joan Flot v. SOUTHERN UNIVERSITY IN NEW ORLEANS.
    No. 83-C-2182.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Gladys Milliner and Willene Taylor, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. Nos. 77-9308 and 77-9309.

Denied.

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


text:
    Bente Tveiten Stagg, wife of Eric Timothy STAGG v. Eric Timothy STAGG.
    No. 83-C-2187.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Bente Tveiten Stagg, applying for writ of certiorari or review. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans. No. 79-4368.

Denied.


text:
    Daryl R. BLACKWELL, Individually and as Natural Tutor of the Estate of His Minor Child, Darren Blackwell and Catherine Blackwell v. Frank S. OSER, M.D.
    No. 83-C-2190.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Daryl R. Blackwell, et al., applying for writ of certiorari or review. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans. No. 78-2547— Division “C”.

Denied.

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


text:
    STATE of Louisiana v. Anthony W. JUNAK.
    No. 83-K-2191.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Anthony W. Junak, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. Criminal District Court, Parish of Orleans. No. 281-979.

Denied.


text:
    ELLWEST STEREO THEATRES, INC., v. Antoinette “Nettie” M. DAVILLA. Mrs. Antoinette Ybos DAVILLA, Widow of Sidney T. Davilla, v. ELLWEST STEREO THEATRES, INC. GIANI INVESTMENT COMPANY, INC. v. Mrs. Antoinette Ybos DAVILLA, et al.
    No. 83-C-2209.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Ellwest Stereo Theatres, Inc., and Antoinette “Nettie” M. Davilla, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. Nos. 80-8272, 80-8355, and 80-15285.

Not considered. Not timely filed.


text:
    STATE of Louisiana, ex rel. Joseph RICHEY v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-0339.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Joseph Richey, applying for remedial writ. Parish of East Baton Rouge. No. 10-76-328.

Denied.


text:
    STATE of Louisiana, ex rel., Mary A. COOPER v. Honorable Dennis J. WALDRON, Judge, Criminal District Court-Sec. “F”, Parish of Orleans.
    No. 83-KH-0374.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Mary A. Cooper, applying for writs of certiorari or review. Criminal District Court, Parish of Orleans. No. 258-161.

Denied.


text:
    STATE of Louisiana ex rel. Arthur Paul BERNDT v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-0377.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Arthur Paul Berndt, applying for writ of mandamus. Parish of Orleans. No. 264-621. Criminal District Court. Sec. “D”

Denied.


text:
    STATE of Louisiana ex rel., Robert Prince EDWARDS v. Donald HATHAWAY and William Guste.
    No. 83-KH-0397.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Robert Prince Edwards, applying for writ of habeas corpus. Parish of Cad-do. No. 114205.

Denied.


text:
    STATE of Louisiana, ex rel., Charley OSBERRY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0402.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Charley Osberry, applying for writ of habeas corpus. Parish of Orleans. No. 272-523.

Denied.


text:
    STATE of Louisiana, ex rel. Alvin BROWN v. Honorable Mary Ann Vial LEMMON, Judge, 23rd Judicial District Court, Parish of Ascension.
    No. 83-KH-0427.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Alvin Brown, applying for writs of certiorari and review. Parish of Ascension. No. 617798.

Denied.


text:
    STATE of Louisiana v. Larry REDMOND.
    No. 83-KH-0438.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Larry Redmond, applying for writ of habeas corpus. Calcasieu Parish. No. 11288-80.

Denied.


text:
    STATE of Louisiana ex rel., Andrea DONNAWAY v. CLERK OF COURT and/or Jeannette G. Garrett, Atty., 1st Judicial District Court, Parish of Caddo.
    No. 83-KH-1372.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Andrea Donnaway, applying for writ of review. First Judicial District Court, Parish of Caddo. No. 115996.

Denied.


text:
    STATE of Louisiana ex rel., Arthur LEE v. Charles C. FOTI, Jr., Criminal Sheriff, Parish of Orleans, New Orleans, Louisiana.
    No. 83-KH-1914.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Arthur Lee, applying for remedial writ. Criminal District Court, Parish of Orleans. No. 288-560.

Denied.


text:
    Pearl KIEFFER, Administratrix of the Succession of John P. Kieffer, Deceased v. SOUTHERN UNITED LIFE INSURANCE CO., et al.
    No. 83-C-1968.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Pearl Kieffer, applying for writ of certiorari, and/or review. Second Circuit Court of Appeal. Eighth Judicial District Court, Parish of Winn. No. 23897.

Denied.


text:
    STATE of Louisiana, ex rel., Ray T. WOODALL, Jr. v. Jim McKAY, Judge.
    No. 83-KH-2070.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Ray T. Woodall, Jr., applying for remedial writs. Parish of Orleans. No. 259-043.

Denied.


text:
    STATE of Louisiana v. Teddy THOMAS.
    No. 83-KH-2146.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Teddy Thomas, applying for remedial writ. Parish of Orleans. No. 293-241, Sec. B.

Denied. Relator must first file in the district court, and supervisory jurisdiction lies in the 4th Circuit Court of Appeal.


text:
    STATE of Louisiana, ex rel. Horace PIERSON v. Ross MAGGIO, Jr., et al., Warden, Louisiana State Penitentiary.
    No. 83-KH-2164.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Horace Pierson, applying for writ of habeas corpus and remedial writs. Criminal District Court. Parish of Orleans. No. 236-694 and 236-693.

Denied.

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


text:
    STATE of Louisiana v. Andre SMITH.
    No. 83-KK-2175.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Andre Smith, applying for writ of certiorari, to review. Criminal District Court. No. 296-608. Parish of Orleans, Fourth Circuit Court of Appeal. No. K-1187.

Denied.

DENNIS, J., would grant the writ.


text:
    Roy McCLAIN, Jr. v. GENERAL AGENTS INSURANCE COMPANY OF AMERICA, INC. GENERAL AGENTS INSURANCE COMPANY OF AMERICA, INC. v. Roy McCLAIN, Jr., and Mrs. Henrietta Dunn McClain.
    No. 83-C-2177.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re General Agents Insurance Company of America, Inc., applying for certiorari, or writ of review. Court of Appeal, Second Circuit. Fifth Judicial District Court. Nos. 24133 and 24181. Parish of Richland.

Denied.


text:
    STATE of Louisiana v. Betty KOLL.
    No. 83-KK-2178.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Betty Roll, applying for writ of certiorari. Fourth Circuit Court of Appeal. No. K-1378. Criminal District Court, Parish of Orleans. No. 275-617, Section “l”.

Writ denied.


text:
    STATE of Louisiana v. William KNOWLES.
    No. 83-KK-2179.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re William Knowles, applying for writs of certiorari, prohibition and mandamus and remedial writs and stay order. Second Circuit Court of Appeal. Fourth Judicial District Court, Parish of More-house. No. 82-2455A.

Denied.


text:
    Louise A. Mouton THOMPSON v. Charles D. THOMPSON.
    No. 83-C-2193.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Louise A. Mouton Thompson, applying for writs of certiorari or review. Court of Appeal, Third Circuit. Fifteenth Judicial District Court, Parish of Lafayette. No. 821870.

Granted. The judgment of the Court of Appeal is reversed. The Court of Appeal erred in denying the application for rehearing, which clearly demonstrated an error in the birth date of one of the minor children. The case is remanded to the trial court for consideration of this evidence.


text:
    Jo Ann Rae Quattlebaum SOBBERRI, Cornelious Minor Quattlebaum, Johnnie Quattlebaum Gibson, Paul Quattlebaum, Frances Quattlebaum Bland, and Andrew Harris Quattlebaum v. Helen Marie COOKSTON.
    No. 83-C-2192.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Jo Ann Rae Quattlebaum Sobberri, et al, applying for writ of review. Court of Appeal, Second Circuit. Eighth Judicial District Court, Parish of Winn. No. 23777.

Denied.


text:
    Howard D. SNEDEGAR v. NOEL ESTATE, INC.
    No. 83-C-2199.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Noel Estate, Inc., applying for cer-tiorari, or writ of review. Court of Appeal, Second Circuit. First Judicial District Court, Caddo Parish. No. 275300.

Denied.


text:
    STATE of Louisiana v. Clifford KEYS.
    No. 83-KP-2206.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Clifford Keys, applying for writ of certiorari. Twenty-seventh Judicial District Court, Parish of St. Landry. No. 36874.

Denied.


text:
    HIBERNIA NATIONAL BANK IN NEW ORLEANS v. L. Romney SCHRIMSHER.
    No. 83-CC-2210.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Hibernia National Bank in New Orleans, applying for writ of certiorari, review and mandamus. Sixteenth Judicial District Court. No. 67036. Parish of St. Mary, First Circuit Court of Appeal. No. 83 CW 0582.

Denied.


text:
    STATE of Louisiana v. Ronald Joseph “Ronnie” OURSO.
    No. 83-K-2216.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Ronald Joseph “Ronnie” Ourso, applying for writs of certiorari. Third Circuit Court of Appeal. Parish of Calcasieu, Fourteenth Judicial District Court. No. 8357-82.

Denied.


text:
    STATE of Louisiana v. Tracy Glenn CLARK.
    No. 83-K-2222.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Tracy Glenn Clark, applying for writs of certiorari or writ of review. Court of Appeal, Second Circuit. Parish of De Soto, Eleventh Judicial District Court. No. 43,321.

Denied.

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


text:
    Harvey LOWE, Jr., Naomi Boyette & Roy Dean Boyette v. CONTINENTAL INSURANCE COMPANY & Thomas Davenport.
    No. 83-C-2227.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Harvey Lowe, Jr., Naomi Boyette & Roy Dean Boyette, applying for remedial or supervisory writs of certiorari, review and mandamus. Second Circuit Court of Appeal. Fourth Judicial District Court, Parish of Ouachita. No. 82-2244.

Denied.


text:
    STATE of Louisiana v. Jessie JACKSON.
    No. 83-KK-2231.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Jessie Jackson, applying for writ of certiorari. Criminal District Court, Parish of Orleans. No. 295-167 Section “F”. Fourth Circuit Court of Appeal.

Denied.

DENNIS, J., would grant the writ.


text:
    Johnny Ray GILCREASE v. Rhonda McDonald GILCREASE.
    No. 83-C-2232.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Johnny Ray Gilcrease, applying for certiorari, or writ of review. Court of Appeal, Second Circuit. First Judicial District Court, Parish of Caddo. No. 288279.

Denied.

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


text:
    James D. MACK v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, et al. and James D. MACK v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, et al.
    No. 83-CC-2235.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re James D. Mack, applying for supervisory writs. Twentieth Judicial District Court. No. 18655. Parish of East Felicia-na, First Circuit Court of Appeal.

Denied.


text:
    STATE of Louisiana ex rel. Andre DONNAWAY v. STATE of Louisiana.
    No. 83-KH-2322.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Andre Donnaway, applying for writ of mandamus. First Judicial District Court, Parish of Caddo.

Denied.


text:
    STATE of Louisiana ex rel. Donald Wayne WAGSTER v. L.J. HYMEL, Judge and Fred Sliman, Sheriff.
    No. 83-KK-2398.
    Supreme Court of Louisiana.
    Nov. 29, 1983.
   In re Donald Wayne Wagster, applying for writs of habeas corpus and bond reduction. First Circuit Court of Appeal. No. 831300. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 11-83-709.

Denied.


text:
    Danny Glenn MILLER v. McDONALD’S CORPORATION, et al.
    No. 83-C-2434.
    Supreme Court of Louisiana.
    Dec. 1, 1983.
   In re Danny Glenn Miller, applying for writ of certiorari or review. First Circuit Court of Appeal. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 239668.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Freddie CLEMENTS, Jr.
    No. 83-KH-2468.
    Supreme Court of Louisiana.
    Dec. 6, 1983.
   In re Freddie Clements, Jr., applying for remedial writ. Criminal District Court, Parish of Orleans. No. 272-959.

Denied.


text:
    Walter C. DUMAS v. Louis JETSON, H.M. “Mike” Cannon in His Capacity as Clerk of Court for the Parish of East Baton Rouge and James H. “Jim” Brown, Secretary of State.
    No. 83-C-2476.
    Supreme Court of Louisiana.
    Dec. 7, 1983.
   In re Louis Jetson, applying for writ of certiorari and/or review. First Circuit Court of Appeal. No. CE-83-1347. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 272,859.

Denied.


text:
    Mrs. Georgia Parker HAMPTON, Individually and Natural Tutrix of Marge Lynette Hampton v. RUBICON CHEMICALS, INC., et al.
    No. 83-C-2086.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Mrs. Georgia Parker Hampton, Individually, et al, applying for certiorari, or writ of review. Court of Appeal, First Circuit. No. 82-CA-0854, from the Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 178241, Division “J”.

Granted.


text:
    Johnny GUILLORY v. DEPARTMENT OF TRANSPORTATION & DEVELOPMENT.
    No. 83-C-2217.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Johnny Guillory, applying for writ of review and certiorari. Court of Appeal, First Circuit. Parish of Iberville, State Civil Service Commission. No. 2673.

Granted.


text:
    STATE of Louisiana, ex rel. Lloyd WILSON v. STATE of Louisiana.
    No. 82-KH-1665.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Lloyd Wilson, applying for remedial writs. East Baton Rouge Parish. No. 10-73-6968.

Denied.


text:
    CITY OF NEW ORLEANS, Blake G. Arata, David Cressy and Jacob Taranto, III, State of Louisiana, Individually and as Members of a Class and New Orleans Public Service, Inc. v. UNITED GAS PIPE LINE COMPANY.
    No. 83-C-2249.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Louisiana Public Service Commission, applying for writ of certiorari and review. Fourth Circuit Court of Appeal. Civil District Court Parish of Orleans. No. 575-544.

Denied.


text:
    STATE of Louisiana ex rel., Reginald THOMAS v. STATE of Louisiana, Criminal District Court, Parish of Orleans.
    No. 83-KH-1041.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Reginald Thomas, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 282552.

Denied.


text:
    STATE of Louisiana, ex rel., William F. EDGECOMBE v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-0574.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re William F. Edgecombe, applying for writ of certiorari and/or writ of habeas corpus. Parish of St. Bernard. No. 35-581.

Denied.


text:
    STATE ex rel., Mervin WILSON v. Thomas C. WICKER, Judge, 24th Judicial District Court and Clerk of Court, 24th Judicial District Court.
    No. 83-KH-0370.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Mervin Wilson, applying for remedial writs. Parish of Jefferson. No. 75-2299.

Granted. Trial judge ordered to furnish relator a copy of his 1976 Boykin transcript forthwith.


text:
    STATE of Louisiana, ex rel. Lester BRADLEY v. CLERK OF COURT, SECTION “D”, ORLEANS CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 83-KH-1649.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Lester Bradley, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 257-880.

Granted. The trial court is ordered to furnish relator a copy of the guilty plea transcript.


text:
    STATE of Louisiana ex rel. George MEALEY v. Honorable Frank SHEA, Judge, Section D, Criminal District Court, Parish of Orleans.
    No. 83-KH-1687.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re George Mealey, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 244-615.

Granted. The district court is ordered to act on relator’s petition on or before December 18, 1983.


text:
    STATE of Louisiana ex rel., Joseph THOMPSON v. STATE of Louisiana, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 83-KH-1867.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Joseph Thompson, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 268-238.

Granted. The district court is ordered to act on relator’s petition within 10 days.


text:
    STATE of Louisiana ex rel., Edison A. SINGLETON v. 32ND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE.
    No. 83-KH-1886.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Edison A. Singleton, applying for writ of mandamus or prohibition. Thirty-Second Judicial District Court, Parish of Terrebonne. No. 23214.

Granted. The trial court is ordered to act on relator’s petition on or before January 8, 1984.


text:
    STATE of Louisiana ex rel., Dennis PETERS v. Honorable Dewaine SEAL, Clerk of Court, Division “A”, Criminal District Court, Parish of Washington, Franklinton, La. 70438, State of Louisiana.
    No. 83-KH-1889.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Dennis Peters, applying for writ of mandamus. Twenty-Second Judicial District Court, Parish of Washington. No. 30929 Section A.

Granted. The district court is ordered to furnish relator the Boykin transcript.


text:
    SOUTH LOUISIANA PRODUCTION CREDIT ASSOCIATION v. Gilbert G. DUFRENE, Sr.
    No. 83-CC-2426.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
    Reconsideration Denied Jan. 6, 1984.
   In re South Louisiana Production Credit Association, applying for supervisory writs and motion for expedited hearing. Twenty-ninth Judicial District Court, Parish of St. Charles. No. 26476 Division “C”. Fifth Circuit Court of Appeal. No. 83-C-752.

Granted. The trial court judgment is reversed and set aside. It is ordered that relator be allowed to proceed by executory process.

DIXON, C.J., WATSON and LEMMON, JJ., would deny the application, because there is an adequate remedy by appeal.


text:
    STATE of Louisiana, ex rel., Tommy L. TAYLOR v. Honorable SCHULINGKAMP, Judge, Criminal District Court, Section “G”, Orleans Parish, State of Louisiana.
    No. 83-KH-1506.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Tommy L. Taylor, applying for writ of mandamus. Parish of Orleans. No. 269-189.

Granted. This application is transferred to the district court for proceeding and action in accordance with law.


text:
    STATE of Louisiana ex rel. Joseph Allen BENNETT v. Douglas GONZALES, Judge, “V” Criminal District Court, Parish of East Baton Rouge.
    No. 82-KH-0745.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Joseph Allen Bennett, applying for writ of mandamus. Criminal District Court, Parish of East Baton Rouge.

Granted. Trial judge ordered to furnish relator with copy of his 1973 Boykin transcript.


text:
    STATE of Louisiana v. Danny O. MYLES.
    No. 83-K-2308.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Danny 0. Myles, applying for writs of certiorari, review prohibition and mandamus. First Circuit Court of Appeal. No. 83-KA-0305. Twenty-Second Judicial District Court, Parish of St. Tammany. No. 94814.

Denied.


text:
    STATE of Louisiana ex rel. Johnny NARCISSE v. Ross MAGGIO, Jr., Warden.
    No. 83-KP-2395.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Johnny Narcisse, applying for supervisory writ, post-conviction relief. Parish of Lafayette, Fifteenth Judicial District Court. No. 43436.

Denied.


text:
    James Nolan McCOY v. C. Paul PHELPS, et al.
    No. 83-C-2319.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re State of Louisiana Through the Louisiana Department of Corrections, applying for certiorari, or writ of review. Court of Appeal, First Circuit. No. 83-CA-0048. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 209-348.

Denied.

MARCUS, J., would grant the writ.


text:
    Barbara Baudot, Wife of/and Gerald J. BAUDOT v. Trudy Impastato, Wife of/and Joseph A. IMPASTATO and State Farm Mutual Automobile Insurance Company.
    No. 83-CC-2397.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Barbara Baudot, Wife of/and Gerald J. Baudot, applying for supervisory writs of certiorari, prohibition, review or mandamus and stay order. First Circuit Court of Appeals. No. CW/83/1274. Parish of St. Tammany, Twenty-second Judicial District Court. No. 73917 Division “E”.

Denied.


text:
    STATE of Louisiana, ex rel. Gregory B. TIGNER v. SHERIFF, BOSSIER PARISH.
    No. 83-KH-2487.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Gregory B. Tigner, applying for petition for review and writ of supervisory control, etc. Second Circuit, Court of Appeal. No. 16144KH. Parish of Bossier, Twenty-sixth Judicial District Court.

Denied.


text:
    STATE of Louisiana ex rel., Larry BROWDER v. COURT REPORTER, CRIMINAL DISTRICT COURT, SECT. G, PARISH OF ORLEANS.
    No. 83-KH-1823.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Larry Browder, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 286-712.

Denied.


text:
    STATE of Louisiana, ex rel. Ernest FREEMAN, Jr. v. Ross MAGGIO, Warden, Louisiana State Penitentiary, and Charles Foti, Criminal Sheriff, Parish of Orleans.
    No. 83-KH-2078.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Ernest Freeman, Jr., applying for writ of mandamus. Orleans Parish, Criminal District Court. No. 198-814.

Denied.


text:
    Jerry L. TURNER, et al. v. The CITY OF SHREVEPORT, et al.
    No. 83-C-2218.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Jerry L. Turner, et al, applying for writ of review. Court of Appeal, Second Circuit. No. 15561-CA. Parish of Caddo, First Judicial District Court. No. 263364.

Denied.

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


text:
    Walter D. DUBOIS v. ELDO CORPORATION et al.
    No. 83-C-2237.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Walter D. Dubois, applying for writ of certiorari/review. Third Circuit Court of Appeal. No. 83-135. Ninth Judicial District Court, Parish of Rapides. No. 122876.

Denied.

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


text:
    Dorothy S. SLAUGHTER v. James P. SLAUGHTER, Jr.
    No. 83-C-2241.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Dorothy S. Slaughter, applying for writ of certiorari. Third Circuit Court of Appeal. No. 83-154. Ninth Judicial District Court, Parish of Rapides. No. 115931.

Denied.

DENNIS, WATSON and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. John W. RANKINS, Jr.
    No. 83-KK-2281.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re John W. Rankins, Jr., applying for writs of certiorari, prohibition and mandamus. Fourteenth Judicial District Court. No. 13931-82. Parish of Calcasieu, Third Circuit Court of Appeal. No. K83-880.

Denied. Adequate remedy in the event of conviction.

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


text:
    STATE of Louisiana v. Charles BUCHANAN.
    No. 83-K-2297.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Charles Buchanan, applying for certiorari, or writ of review. First Circuit Court of Appeals. No. 83-KA-0039. Parish of Tangipahoa, Twenty-first Judicial District Court.

Denied.


text:
    STATE of Louisiana ex rel., Richard OFFRAY v. John P. WHITLEY, Warden, and Carolyn Tullier, Records Dept., Hunt Correctional Center, St. Gabriel, La. 70776.
    No. 83-KH-2302.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Richard Offray, applying for writ of mandamus. Parish of Orleans, Criminal District Court: No. 258-836, Sect. G.

Denied. The Department of Corrections is in the process of complying with relator’s request. Relator may reapply after a reasonable time, if necessary.


text:
    STATE of Louisiana ex rel. Gordon HANDY and Jack Handy v. 26TH JUDICIAL DISTRICT COURT, Judge Monty Wyche and Vol Dooley, Sheriff.
    No. 83-KH-2477.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Gordon Handy and Jack Handy, applying for remedial writ. Twenty-sixth Judicial District Court, Parish of Bossier.

Granted for limited purpose of transferring to the Court of Appeal, 2nd Circuit.


text:
    STATE of Louisiana, ex rel. Gregory TIGNER v. Monty WYCHE, Judge, 26th Judicial District Court, Parish of Bossier, and Vol Dooley, Sheriff, et al.
    No. 83-KH-2478.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Gregory Tigner, applying for supervisory writ and writ of habeas corpus. Twenty-sixth Judicial District Court, Parish of Bossier.

Granted for sole purpose of transferring to Court of Appeal, 2nd Circuit.


text:
    STATE of Louisiana ex rel. Richard TURKS v. CLERK OF COURT, PARISH OF BOSSIER, 26TH JUDICIAL DISTRICT COURT.
    No. 83-KH-1700.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Richard Turks, applying for writ of mandamus. Twenty-sixth Judicial District Court, Parish of Bossier. Nos. 58,513 and 59,637.

Granted. Boykin transcript ordered furnished. Otherwise denied.


text:
    STATE ex rel., Mitchell DOYLE v. STATE of Louisiana.
    No. 82-KH-2046.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Mitchell D. Doyle, applying for writ of prohibition. Parish of East Baton Rouge. No. 10-79-110.

Denied.


text:
    STATE of Louisiana, ex rel., Mark J. DUHON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-2901.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Mark J. Duhon, applying for writ of mandamus on habeas corpus. Parish of Jefferson. No. 77-1963.

Denied.


text:
    STATE ex rel. Donald Ray JOHNSON v. Ross MAGGIO, Warden.
    No. 83-KH-0045.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Donald Ray Johnson, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita, Fourth Judicial District. No. 39-764.

Denied.


text:
    STATE ex rel., Rev. Paul D. SCHEPPF v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-0447.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Rev. Paul D. Scheppf, applying for writ of certiorari or habeas corpus. Parish of Iberia. No. 51996.

Denied.


text:
    STATE of Louisiana ex rel., Troy Lee CARTER v. Donald R. GUILLORY, Warden, Wade Correctional Center, Louisiana Department of Corrections.
    No. 83-KH-0546.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Troy Lee Carter, applying for writ of review. Parish of West Carroll. Nos. 11475 and 11495.

Denied.


text:
    STATE of Louisiana, ex rel. Donnie C. TAYLOR v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-0559.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Donnie C. Taylor, applying for remedial writ. Parish of Lafayette. No. 43434.

Denied.


text:
    STATE of Louisiana, ex rel. Marion ANDERSON v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-0562.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Marion Anderson, applying for supervisory writs. Parish of St. Tammany. No. 74618.

Denied.


text:
    STATE of Louisiana, ex rel. Gary JEFFERSON v. John M. GOUGAN, Warden.
    No. 83-KH-0567.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Gary Jefferson, applying for remedial writ. Parish of Bossier.

Denied.


text:
    STATE of Louisiana, ex rel. Harvey WILLIAMS v. H.G. SULLIVAN, Director of the Ouachita Parish Jail, Monroe, Louisiana.
    No. 83-KH-0599.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Harvey Williams, applying for writ of habeas corpus. Parish of Ouachita. No. 40522.

Denied.


text:
    STATE of Louisiana, ex rel. Samuel W. TRAVIS v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-0600.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Samuel W. Travis, applying for remedial writ. Parish of Jefferson. No. 80-987, Division “A”.

Denied.


text:
    STATE of Louisiana, ex rel. Lee Roy WILLIAMS v. Charles C. FOTI, Jr., Criminal Sheriff.
    No. 83-KH-0894.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Lee Roy Williams, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 264-664, Section “B”.

Denied. Moot.