text:
    Annie B. HICKS, Plaintiff-Appellant, v. William L. HICKS, Defendant-Appellee.
    No. 83-654.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      . Puhrer, Flournoy & Hunter, John E. Morton, Alexandria, for plaintiff-appellant.
    Michael Bonnette, Natchitoches, for defendant-appellee.
    Before FORET, LABORDE and YEL-YERTON, JJ.
   FORET, Judge.

Annie B. Hicks appeals from a judgment in favor of her husband, William L. Hicks, which reduced both her alimony and child support payments and denied her request to make past due payments executory. The issues on appeal are:

(1) Whether the trial court erred in overruling Mrs. Hicks’ exception of no cause of action where the husband’s rule did not allege any change in circumstances, and
(2) Whether the trial court erred in denying Mrs. Hicks’ request to make past due payments executory.

On November 16, 1982, Annie B. Hicks filed suit for separation from her husband, William L. Hicks. Mr. Hicks was properly served. A preliminary default was entered on December 21, 1982, and confirmed on February 10, 1983. A default judgment was signed on February 10, 1983, granting Mrs. Hicks her separation and awarding her $50 per week in alimony and $150 per week for support of the couple’s six children. Unfortunately, the judgment incorrectly set the awards by the month instead of by the week. Therefore, the judgment was amended on February 17, 1983. Notices of judgment were sent to Mr. Hicks on both occasions.

Three weeks later, Mr. Hicks filed a rule to reduce alimony and child support based on the following grounds:

“2.
... that this was a default judgment rendered in the above case and that there was no evidentiary hearing as to his ability to pay said amount.
3.
... that he has a net income of approximately $1,700.00 per month and community obligations and debts in excess of $1,951.50 per month.
4.
... that the award of Eight hundred ($800.00) as child support and alimony per week[sic] is excessive, since plaintiff’s income and expense affidavit, if true, showed only a need of Six hundred Forty-two & 10/100 ($642.10) Dollars per month.
5.
In view of all the indebtedness and expenses mentioned above, mover is not able to pay his divorced wife alimony and child support at the sum fixed by this court, and can only afford a combined amount of child support and alimony at the rate of Four hundred Fifty ($450.00) Dollars per month."

Mrs. Hicks filed a rule to make past due payments executory.

• On the day of the hearing, April 12; 1983, Mrs. Hicks filed an exception of no cause of action. The trial court overruled the exception and heard both the husband’s and the wife’s respective rules.

After hearing testimony from both the husband and the wife, the trial court reduced the husband’s alimony obligation from $50 to $25 per week and his child support obligation from $150 to $100 per week. Also, he denied the wife’s request to make past due payments executory.

From these rulings, the wife appealed, alleging three assignments of error. They are:

“(1) The trial court erred in overruling appellant’s exception of no cause of action.
(2) The trial court erred as a matter of law, in failing to award past due alimony and child support payments.
(3) The trial court erred as a matter of law in reducing alimony and child support payments in the absence of proven change in circumstances.”'

The husband has neither answered the appeal nor briefed his arguments.

The first issue to be discussed is whether the trial court erred in overruling the wife’s exception of no cause of action. Because the husband alleged no change in circumstances in his rule to reduce, Mrs. Hicks argues that the trial court erred in overruling her exception. We agree.

It is well established that a party seeking a modification in a child support or alimony award must allege and establish a change in the respective financial circumstances of the parties. This statement is true whether the judgment was by default or at the conclusion of an adversary proceeding. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973), overruling Moore v. Moore, 256 So.2d 782 (La.App. 4 Cir.1972).

The grounds upon which Mr. Hicks based his rule were that no evidentiary hearing was held to determine a proper amount of alimony and support and that Mr. Hicks was financially unable to pay the amounts awarded. Even if we were to assume these facts as true, these issues could have been easily raised by Mr. Hicks had he desired to appear in court prior to the confirmation of the wife’s default judgment. Furthermore, Mr. Hicks has neither appealed nor attempted to nullify the rendering of the default judgment. We cannot allow Mr. Hicks to disguise his nullification and/or appeal of the default judgment by using a rule to reduce.

The second issue to be decided is whether the trial court erred in denying Mrs. Hicks’ request to make past due payments executory. The record reveals the following colloquy:'

“MR. MORTON: Your Honor, if I may request one clarification on the Court’s ruling. The request for past due alimony was denied.
THE COURT: Yes, sir.
MR. MORTON: Am I to understand that that’s because of the conflicting stat-ments [sic] of the parties as to whether the amounts were paid or is that because of the confusion between the two judgments?
THE COURT: The combination of all of that.
MR. MORTON: Oh. Thank you.”

So apparently, the trial court ruled in favor of Mr. Hicks because of Mr. Hicks’ confusion over the two judgments and because he felt some payments were actually made to the wife.

As to the trial court’s reasons for denying the wife’s claim, we know of no authority which allows a trial judge to deny making arrearages executory because of a party’s confusion as to a judgment. The confused party has other remedies available to him under the law In a rule to make past due alimony and child support payments executory, a court has no discretion as to whether or not judgment will be rendered if there is proof that payments are in arrears. Theriot v. Melancon, 311 So.2d 578 (La.App. 3 Cir.1975). Thus, Mrs. Hicks must prevail in her rule if she can prove that the payments were actually in arrears.

At the hearing, Mr. Hicks testified that he paid in full only the first week’s payments, and after that, he gave the wife anywhere from $50 to $75 per week in cash as well as $10.50 per week to the children for lunch money. Mrs. Hicks admits that she received the first week’s payments, and that her husband paid for the children’s lunch money, but denies ever receiving anything else. Because the trial judge ruled as he did, we must assume that he felt that some of these payments were made.

The question of whether the husband has paid support payments is ultimately one of credibility, and will not be disturbed absent manifest error. Singleton v. Singleton, 423 So.2d 791 (La.App. 4 Cir.1982), writ denied, 427 So.2d 1210 (La.1983). We cannot say that the trial court was clearly wrong in believing the husband. We find, however, that even if we take everything Mr. Hicks said as true, because he owed the wife $200 per week in alimony and support, he would still be substantially delinquent in his payments. Because of the rule of Theriot, we have no choice but to grant the wife’s request to make the past due payments executory, subject to the husband’s right to a credit for the amounts paid. Davis v. Davis, 405 So.2d 594 (La.App. 3 Cir.1981).

For the reasons assigned, the judgments of the trial court overruling the wife’s exception of no cause of action and reducing the husband’s alimony and child support payments are reversed. Furthermore, we reverse the judgment of the trial court denying the wife’s request to make past due payments executory, and render judgment in favor of Annie B. Hicks and against William L. Hicks in the amount of $1,016®, plus legal interest from the date of judicial demand until paid. Appellee is assessed all costs at the trial level and on appeal.

REVERSED AND RENDERED.

      . The party may seek to traverse, nullify, or appeal the judgment.

      . LSA-C.C.P. Article 3945 provides:
      “Art. 3945. Execution of alimony judgments in arrears
      When the payment of alimony under a judgment is in arrears, the party entitled thereto may proceed by contradictory motion to have the amount of past due alimony determined and made executory. On the trial of the contradictory motion, the court shall render judgment for the amount of past due alimony.” The reasoning behind the Theriot decision was based on the wording of this article which states, "the court shall render ... ”.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    AMERICAN DEPOSIT INSURANCE COMPANY, Plaintiff-Appellant, v. Edward J. WALKER, et al., Defendants-Appellees.
    No. 83-663.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Bolen & Erwin, Gregory S. Erwin, Alexandria, for plaintiff-appellant.
    Knoll & Knoll, Thomas E. Papale, Charles A. Riddle, III, Marksville, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

Plaintiff, American Deposit Insurance Company, invoked this concursus proceeding requesting that all defendants assert their respective claims to the proceeds of an insurance policy. After a trial, judgment was rendered awarding $6,000.00 to Sheila Walker, $3,000.00 to Chad Odom, and $1,000.00 to Edward Walker, Jr. Plaintiff was assessed with all costs.

From that judgment plaintiff has perfected this appeal claiming that the trial court’s judgment is in error insofar as it was cast with all costs of court.

In June of 1981, plaintiff issued a policy of automobile liability insurance to Edward J. Walker. This policy covered Mr. Walker and the members of his household and included among other things uninsured motorist coverage for bodily injury with limits of $5,000.00 for each person and $10,000.00 for each accident.

On April 23, 1983, while covered by the aforementioned policy of insurance, four members of Mr. Walker’s household were involved in a serious one-car accident. The driver-owner of the automobile was uninsured. As a result of the accident Sheila Odom Walker, Edward J. Walker, Jr., and Chad Joseph Odom all suffered serious injuries and Brad Paul Odom was killed.

Sheila Odom Walker is the wife of the insured, Edward Walker, and Edward Walker, Jr., is the natural child of their marriage. Chad Joseph Odom and Brad Paul Odom are the natural children of Sheila Odom Walker.

Demand was made upon appellant, American Deposit Insurance Company, on October 20, 1982, for the payment of the full policy limits of $10,000.00 for the death of Brad Paul Odom and the injuries sustained by Sheila Odom Walker, Edward J. Walker, Jr., and Chad Odom. American Deposit Insurance Company agreed to pay. Plaintiff could not determine how the insurance proceeds should be apportioned, nor could the claimants agree. As a consequence thereof, appellant invoked a concur-sus proceeding pursuant to Article 4651 et seq. of the Louisiana Code of Civil Procedure. It admitted liability for the full amount of its insurance policy, and with the Court’s permission, deposited $10,-000.00 into the Registry of the Court.

After a trial, judgment was rendered awarding Sheila Odom Walker $6,000.00 for her personal injuries and claim for the wrongful death of her son, Brad Paul Odom; awarding Chad Joseph Odom $3,000.00 for his personal injuries and claim for the wrongful death of his twin brother, Brad Paul Odom; awarding Edward Walker, Jr., $1,000.00 for his personal injuries and claim for the wrongful death of his half-brother, Brad Paul Odom; and casting appellant with all costs of court.

The sole issue on appeal is whether the trial judge erred in casting the plaintiff-appellant with court costs.

Article 1920 of the Louisiana Code of Civil Procedure sets out the general rule for determining liability for the costs of court. Costs are to be paid by the party cast unless the judgment provides otherwise. The court is vested with great discretion in determining who is liable and also in apportioning costs as it deems equitable. However, this discretion is not unbounded. Leblanc v. Opt, Inc., 421 So.2d 984 (La.App. 3rd Cir.1982), writs denied, 427 So.2d 438 (La.1983), 429 So.2d 132 (La.1983). One limitation on the court’s discretion is Article 4659 of the Louisiana Code of Civil Procedure, governing the payment of costs in a concursus proceeding which has been invoked pursuant to Article 4651 et seq.

La.C.C.P. Art. 4651 provides as follows:

“A concursus proceeding is one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceedings.”

Once the concursus has been instituted the plaintiff may, under the authority of La.C.C.P.Art. 4658, deposit the money claimed into the Registry of the Court. Article 4658 provides:

With leave of court, the plaintiff may deposit into the registry of the court money which is claimed by the defendants, and which plaintiff admits is due one or more of the defendants.
When sums of money due one or more of the defendants accrue from time to time in the hands of the plaintiff after the institution of the proceeding, with leave of court he may deposit the money as it accrues into the registry of the court.
After the deposit of money into the registry of the court, the plaintiff is relieved of all liability to all of the defendants for the money so deposited.” (Emphasis added.)

It is clear from the emphasized portion of the above statute that the plaintiff is not required to deposit money into the Court’s Registry but may if he desires, ask permission to do so. Thus the Code of Civil Procedure contemplates two types of con-cursus proceedings: One in which the money has been deposited into the Registry of the Court and one in which no money has been deposited. This proposition is further evidenced by La.C.C.P.Art. 4659. That Article deals specifically with the assessment of costs in concursus proceedings. It states:

“When money has been deposited into the registry of the court by the plaintiff, neither he nor any other party shall be required to pay any of the costs of the proceeding as they accrue, but these shall be deducted from the money on deposit. The court may award the successful claimant judgment for the costs of the proceeding which have been deducted from the money on deposit, or any portion thereof, against any other claimant who contested his right thereto, as in its judgment may be considered equitable.
In all other instances, the court may render judgment for costs as it considers equitable.” (Emphasis added).

The Official Revision Comments under that Article state inter alia:

“(a) The first paragraph is similar to the source provision, except that it makes the award of costs or any part thereof discretionary with the court. The second paragraph deals with a situation not covered under the prior law; when the plaintiff does not deposit a fund into the registry of the court. Since it is virtually impossible to treat specifically all of the various situations which might arise, the court is given complete discretion in assessing costs.” (Emphasis added).

Thus the second paragraph of Article 4659, allowing complete discretion in assessing costs, deals with concursus proceedings when no money is deposited into the Registry of the Court. In opposition thereto is paragraph 1 which deals with concursus proceedings where money has been deposited into the Registry of the Court and that paragraph does not allow the Court complete discretion but rather commands that “[w]hen money has been deposited into the Registry of the Court by the plaintiff, neither he nor any other party shall be required to pay any of the costs of the proceedings as they accrue, but these shall be deducted from the monies on deposit.” (Emphasis added.)

The Official Revision Comments do state in reference to paragraph 1 of Article 4659 that the award of costs or any part thereof is discretionary, but the discretion referred to there is to award the successful claimant judgment for costs against any unsuccessful claimant, not the plaintiff. Thus under paragraph 1 of Article 4659 there is no authority for the trial judge to assess costs against a plaintiff who has deposited the funds claimed into the Registry of the Court, but rather the costs are to “be deducted from the money on deposit.”

Although not elaborating on the reasons why, the Courts of Appeal have followed the above method of assessing costs in concursus proceedings. See Succession of Butler, 147 So.2d 684 (La.App. 4th Cir. 1962), writ denied, 244 La. 117, 150 So.2d 584 (1963), wherein on appeal the trial court was reversed for assessing costs against a plaintiff that deposited the claimed funds into the Registry of the Court. See also Agency Management Corporation v. Green Acres Realty, Inc., 286 So.2d 465 (La.App. 1st Cir.1973), writ denied, 289 So.2d 155 (La.1974), wherein the court held the plaintiff liable for costs of the concursus proceeding stating that “plaintiff could have escaped liability for costs and interest by making a deposit into the Registry of the Court.” Supra, at 468.

In this case the plaintiff with leave of court, deposited the claimed funds into the Registry of the Court at the time the concursus proceeding was invoked. Thus it should not have been taxed with costs.

For the above and foregoing reasons the judgment of the trial court is reversed insofar as costs were assessed against plaintiff, American Deposit Insurance Company, and it is Ordered that costs are to be assessed against the claimants in the same proportion that the share of the funds they individually received bears to the total amount deposited into the Registry of the Court, i.e., sixty percent to Sheila Walker, thirty percent to Chad Odom, and ten percent to Edward Walker, Jr.

REVERSED IN PART, AND RENDERED.

      . While it is noted that the Official Revision Comments do not constitute part of the law they are persuasive and helpful in interpreting the intent of the article. See La.R.S. 1:13 and Montelepre v. Edwards, 359 So.2d 1311 (La.App. 4th Cir.1978).


author: STOKER, Judge.

text:
    HUARD’S, INC., Plaintiff-Appellee, v. SOUTHERN STATES MANAGEMENT CORPORATION and Odgen, Jones and Douglas, Defendants-Appellants.
    No. 83-673.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Dupuis, Mayers & Harson (Michael Har-son, Lafayette, for defendants-appellants.
    Wall, Hiatt & Kuehne, G. Bruce Kuehne, Lafayette, for plaintiff-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   STOKER, Judge.

The issue before us in this case concerns the amount of rent owed by the lessee, Huard’s Inc. Specifically, the question is whether under a percentage lease Huard’s is obligated to pay to the lessor a percentage of revenue derived from rental of television sets as well as proceeds of sales of television sets and charges for servicing them. The trial court held not and we affirm.

On August 3, 1976, Huard’s executed an agreement to lease retail space in a shopping center from Ogden, Jones & Douglas, a partnership. The lease was for a term of 60 months to begin when the space was ready for occupancy. The lease term ended on April 30, 1982. Rent for the premises was set at $1,500 per month plus 4% of “gross sales” in excess of $360,000.

At the time the lease was executed, Huard’s business was the sale and servicing of television sets and similar appliances. In 1978, Huard’s began renting its merchandise to customers under lease agreements with an option to buy. Huard’s continued to pay rent based on its sales but did not include payment based on its rental revenue. In November of 1981, Huard’s began operating its rental business from a separate location.

Southern States Management Corporation, also named as a defendant in this suit, provides management service for the partnership which owns the shopping center. At Southern’s request, the RaLor Corporation conducted a tenant sales examination of Huard’s for the period from May 1, 1979 through April 30, 1981. The report from that examination indicates that Huard’s had underreported sales in the amount of $306,145 and owed $12,245.80 in percentage rentals. There is apparently no dispute that the underreported amount is the rental revenue taken in by Huard’s during the period covered by the examination.

After a demand for percentage rentals based on rental revenue was made, Huard’s brought this action for a declaratory judgment to determine its obligation under the lease. Made defendants were Ogden, Jones & Douglas and Southern States Management Corporation. The partnership reconvened and demanded additional rent based on the rental revenue and sought an audit for the period from May 1, 1981 through April 30, 1982. Huard’s submitted to the requested audit prior to trial so that issue is not before us.

The second audit report was introduced at trial and indicates that for the period of May 1, 1981 through April 30, 1982, Huard’s underreported sales in the amount of $410,959 and owed $16,438.36 in percentage rentals. We note that both audits include income from the second location of Huard’s. Although we do not consider this issue, it may be that the income from the second location should not have been included.

The trial court decided the issue of percentage rentals in favor of Huard’s determining that the rental revenue should not be considered as part of “gross sales.” The reconventional demand was dismissed. We affirm the judgment of the trial court.

As previously stated, the rent to be paid by Huard’s included 4% of gross sales in excess of $360,000. In defining gross sales, the lease provides:

“The term ‘gross sales’ shall mean the selling price of all merchandise sold or delivered in, at, on, or from any part of the demised premises, and the charges for all services of any sort sold or performed in, at, on, or from any part of the demised premises ...”

In brief on appeal, appellants make the following argument:

“Appellant respectfully submits that the rental and/or leasing of equipment is a service rendered to the consumer such that the remuneration received by HUARD’S, INC. is a ‘charge for all services of any sort, sold or performed in, at, on or from any part of the demised premises,’ as is defined in the terminology ‘gross sales’ in the lease agreement.”

In response to this argument Huard’s asserts, and the trial court so found, that because rental revenue is not clearly included in “gross sales” the lease must be construed in favor of the lessee. Ambiguous phrases in contracts are construed against the party who prepared the contract, in this case the lessor. Rayford v. Louisiana Savings Association, 380 So.2d 1232 (La.App. 3rd Cir.1980), writ denied, 384 So.2d 793 (La.1980). Ambiguities in a lease should be construed in favor of the tenant. Tullier v. Tanson Enterprises, Inc., 367 So.2d 773 (La.1979).

Appellants raise several matters in support of their position that the rental revenue should be included in the percentage rentals to be paid by Huard’s. They assert that the testimony of William Mob-ley, Sr., owner of Huard’s, and William Mobley, Jr., manager, shows that they were aware that percentage rentals would be applied to their renting program. We disagree. The renting program was not begun until well after the lease had been executed and the lease term had begun. Once this controversy arose, the Mobleys apparently chose to move the rental program to another location in order to avoid the conflict. Both Mobleys testified without qualification that they did not believe percentage rentals were owed on the rental revenue.

An exchange of letters between William Mobley, Jr. and Susan Sutherland of Southern States Management make it apparent to us that there was ambiguity in the lease and that some misunderstanding continued between the parties. Mr. Mobley indicated in his letter (P-1) that money from the sale of leased merchandise would be included in “gross sales” but monthly rental payments would not. He requested that if the lease were renewed, he would like an addendum specifically stating this. Ms. Sutherland’s response (P-2) includes the statement that “the total revenues collected are to be added to Huard’s gross sales.” This statement is directly contrary to the clarification proposed by Mr. Mobley.

Appellants also argue that if we accept the term “gross sales” in its common or general use or as a term of art, we must find that rental revenue should be included. We disagree. The term “gross sales” is defined in the lease agreement and the parties are bound by that definition. Under any construction we cannot determine that rental revenue should be included either as a “sale” or a “service,” as those terms are used in the lease. We agree with the trial judge that the lease could have required that a percentage be paid on “all revenue,” in which case there would be no question. The lease required that a record be kept of “all revenue” but that term was not used in the provision for percentage rental. Contrary to appellants' claim, we do not believe that the use of “all revenue” in the record-keeping requirement can be applied to the portion of the lease establishing rental payments, particularly when the lessor chose to use the term “gross sales.”

We note further that after the lease under consideration here expired, Huard’s executed a new lease with another lessor which specifically treats sales and rentals differently, i.e., as different kinds of business enterprises. Although a percentage is paid on both, the percentage rentals under the new lease consist of 4% of gross sales over $750,000 and 1% of rental revenue over $200,000.

Considering all these facts, we agree with the trial court’s disposition of this case. The term “gross sales” does not clearly include rental revenue and must be construed against the lessor.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendants-appellants.

AFFIRMED.


author: YELVERTON, Judge.

text:
    A.V. SMITH CONSTRUCTION COMPANY, INC., Plaintiff-Appellee, v. MARYLAND CASUALTY COMPANY, et al, Defendants-Appellants.
    No. 83-692.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Voltz & Ware, Gus A. Voltz, Jr., Alexandria, for defendants-appellants.
    Charles F. Wagner, Pineville, for plaintiff-appellee.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

This is an appeal from a judgment for plaintiff, A.V. Smith Construction Company (Smith), against the defendant, Rapides Parish School Board, for $18,033.75, plus legal interest and court costs. The trial court determined that the school board tacitly contracted with Smith to do certain repair work and that Smith was entitled to recover the cost of the repair work. The school board appeals. We affirm for different reasons but amend the judgment to reduce the award.

The facts are as follows: Smith had a contract with the school board to do certain construction work at Tioga Junior High School. The contract included the demolition of two buildings. Smith subcontracted the demolition to Lando Patton Construction Company (Lando Patton). On June 12, 1980, a fire occurred while one of the buildings was being demolished by Lando Patton. The fire spread to another building and damaged it.

Several days after the fire a meeting was held between Smith, Lando Patton, the insurers of these two parties, a representative of the school board, and the architect for the school board. The purpose of this meeting was to discuss the liability for the fire damage. At this meeting each of the insurance adjustors declined to accept responsibility for repairing the damage. After the meeting the school board representatives had another discussion with Smith urging him to repair the damage before the opening of school. They reached an agreement that Smith would do the repair work. They did not talk about cost or responsibility for cost.

The letting of the work to Smith was done without advertisement, bids, or a written contract. Smith did the repairs at a cost to him of $18,033.75.

Smith testified that at the time of this agreement he thought one of the insurance companies would eventually pay him. After the repairs were completed he was unsuccessful in obtaining payment from any source. It was concluded that his own insurer did not provide this coverage. He filed suit against Lando Patton and his insurer based on Lando Patton’s negligence in causing the fire. In the alternative he made the school board a defendant alleging liability on the basis of either implied contract or unjust enrichment. The school board answered and also filed a third party demand against Lando Patton based on negligence. Smith’s suit against Lando Patton was dismissed by the trial court on an exception of no cause of action and a motion for summary judgment, and Smith appealed. This court reversed, 422 So.2d 697 (La.App. 3rd Cir.1982), finding that Smith’s petition stated a cause of action against Lando Patton.

Trial on the merits was held on March 29, 1983. On the day of trial Smith settled with Lando Patton and his insurer for $13,-500. Smith’s demands against these defendants were dismissed.

The trial proceeded against the school board. The trial court rendered judgment against the school board for the cost of repairs in the amount of $18,033.75 with interest and costs. The trial court found that there was an implied contract between Smith and the school board to make the fire damage repairs. The third party demand of the school board against Lando Patton was rejected because the trial judge found no evidence of negligence. The dismissal of the third party demand has not been appealed.

The issue on appeal is whether the trial court erred in finding an implied contract and, if this was error, whether the plaintiff’s judgment may nevertheless be affirmed under the theory of unjust enrichment.

The appellant argues that there was never a contract because the school board never consented to have the repairs performed by Smith. The school board also says that even if there was an implied consent, the contract was in violation of the Public Contracts Law and unenforceable.

We agree that even if there was an agreement to do the repairs, it would have been a contract in violation of LSA-R.S. 38:2211, et seq, because the school board is a public body and the legal requirements of advertisement and letting to the lowest bidder were not observed. However, because under the facts of this case the parties were in good faith and their dealings were honest, the contract was merely void malum prohibitum. In such a case, unjust enrichment (La. Civil Code article 1965) may enable the contractor to recover in quantum meruit as much as he reasonably deserves for his services and for the time and labor required for them. Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3rd Cir.1974); Fullerton v. Scarecrow Club, Inc., 440 So.2d 945 (La.App. 2nd Cir.1983).

Although recent decisions have allowed quantum meruit recovery for profit and/or overhead expenses attributable to the project, plaintiff’s suit demanded only the actual costs to him of the repairs, which were stipulated. Therefore, we are concerned only with whether plaintiff’s claim for recovery is supported under the theory of unjust enrichment.

As this court stated in Daspit v. City of Alexandria, 342 So.2d 683 (La.App. 3rd Cir.1977), writ denied 344 So.2d 1056 (La.1977):

“ ... The doctrine of unjust enrichment is based on Article 1965 of our Civil Code which states that no one ought to enrich himself at the expense of another. Courts have employed the doctrine to allow recovery where there is no contract but a municipality reaps benefits from another party. See Brock v. Town of Kentwood, 196 La. 318, 199 So. 133 (1940); Hinkle v. City of West Monroe, 196 La. 1078, 200 So. 468 (1941). In Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967) the Supreme Court listed the following elements necessary for recovery under unjust enrichment: (1) An enrichment. (2) An impoverishment. (3) A connection between the enrichment and the resulting impoverishment. (4) An absence of justification for the enrichment or impoverishment, and (5) The absence of any other remedy at law.”

In the present case we find that Smith proved all five elements. The school board was enriched by the repairs performed by Smith. The buildings had been damaged by the fire and the school board needed the repairs done before the autumn opening of school. Smith was impoverished in that he was not paid for the cost of the repairs. The cost of the repairs was stipulated at $18,033.75. However, this is not the amount by which Smith was impoverished. Smith’s suit against Lando Patton for the cost of the repairs was settled for $13,500. Therefore we find that Smith has been impoverished only to the extent of the difference, $4,533.75. There is also a connection between the enrichment and the impoverishment in that Smith performed the work which enriched the school board; the representative of the school board urged Smith to perform the work; and the school board was benefitted by the work. The record also does not reveal a justification for the enrichment or the impoverishment. No evidence was presented to show that the fire was caused by the negligence of Smith or his subcontractor. The trial court determined that it was not known exactly how the fire started or by whose fault it happened.

We also find that the plaintiff had no other remedy at law arising from its relationship with the school board.

For the above reasons the judgment of the trial court is amended to reduce the award to $4,533.75. In all other respects the judgment is affirmed at appellant’s cost.

AMENDED AND AFFIRMED.


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. Claude M. BOUTIN, Appellant.
    No. CR83-725.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Robert R. Broussard, Domengeaux & Wright, Lafayette, for appellant.
    Jennifer S. Nehrbass, Asst. Dist. Atty., Lafayette, for appellee.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   FORET, Judge.

Defendant, Claude M. Boutin, was charged by bill of information with driving while intoxicated (third offense), in violation of LSA-R.S. 14:98. On May 12, 1983, the defendant waived his right to a jury trial and was tried before the district judge. He was found guilty.

On May 24, 1983, the defendant was sentenced to a term of three years at hard labor, which was suspended, and he was placed on supervised probation, with the special condition of probation being that he pay a fine of $1,000 plus court costs and serve one year in the Lafayette Community Correctional Center and attend the Court Sobriety Program and Driving Program.

The defendant filed a motion for appeal but has not filed any assignments of error nor has a brief been filed. Consequently, this case will only be reviewed for errors patent on the face of the record. State v. Jimmerson, 432 So.2d 1093 (La.App. 3 Cir.1983). We have fully reviewed the record for these errors and find none.

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Sherman J. CAILLIER, Jr., Defendant-Appellant.
    No. CR83-791.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Writ Denied Sept. 14, 1984.

      Thomas E. Guilbeau, Lafayette, for defendant-appellant.
    Michelle E. Jackson, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Defendant, Sherman J. Caillier, was convicted by a jury of armed robbery (LSA-R.S. 14:64). He was convicted in a judge trial of aggravated battery (LSA-R.S. 14:34). He was sentenced to 40 years at hard labor for the armed robbery and given a concurrent sentence of 10 years for the battery. On this appeal he presents three assignments of error: (1) ineffective assistance of counsel; (2) the trial court’s refusal to allow defendant to testify in his own defense; and, (3) non-compliance in sentencing with LSA-R.S. 15:824.

The record on appeal contains the entire trial. It appears from the evidence that the defendant and another robbed a gas station attendant in Lafayette in the early hours of July 15, 1982. Defendant was armed with a pistol. His accomplice emptied the store register of its money while defendant held a gun on the attendant. Defendant then beat the attendant into unconsciousness.

The victim later identified the accomplice in a photo lineup. The accomplice confessed and implicated the defendant. The victim identified the defendant in another photo lineup. Defendant was charged with armed robbery , and aggravated battery.

Defendant’s first counsel presented a bond reduction motion to the court and then was permitted to withdraw. His second appointed counsel was permitted to withdraw when defendant expressed a desire to retain his own counsel. The third attorney, Fredric G. Hayes, was retained and served as the trial counsel. After trial defendant retained his fourth attorney who filed the appeal. During the pendency of the appeal the fourth attorney was permitted to withdraw and his present counsel was substituted.

It was the third, or trial counsel, Fredric G. Hayes, whose representation is now alleged to have been ineffective.

ASSIGNMENT OF ERROR NO. 1

Defendant claims that his trial counsel was ineffective because he was not prepared for trial and because at the trial he provided only token representation.

An ineffective assistance of counsel claim is properly raised by writ of habeas corpus in the trial court. State v. Seiss, 428 So.2d 444 (La.1983). This was not done in the present case, the claim being presented for the first time on appeal. Therefore, we do not have the benefit of the opinion of the judge who presided at the trial regarding the effectiveness of counsel, nor any explanation of his representation by the attorney whose effectiveness is challenged. However, review of the claim can be made on the present record and we will do so in the interest of judicial economy. State v. Seiss, supra.

In State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983), the Louisiana Supreme Court stated as follows:

“To establish a claim of ineffective representation, the defendant must demonstrate that counsel did not meet the level of competency ‘normally demanded’ in criminal cases. An adequate defense must be based on ‘informed professional deliberation.’ McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); State v. Felde, 422 So.2d 370 (La.1982). Effective assistance of counsel does not mean ‘errorless’ counsel, or counsel which may be judged ineffective on mere hindsight, but counsel ‘reasonably likely to render and [actually] rendering reasonably effective assistance.’ State v. Seiss, 428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982).
“In the recent decision of State v. Berry, 430 So.2d 1005 (La.1983), this court established a meaningful analysis for claims of ineffective assistance of counsel. Adopting the two-pronged inquiry of McQueen v. Swenson, 498 F.2d 207 (8th Cir.1974), this court established the first inquiry as to whether counsel violated some duty to the client. The second inquiry is whether the violation, if any, prejudiced the client in the defense of his case....”

In the present case both inquiries must be answered in the negative. Defendant’s trial counsel actively participated in the voir dire, questioning prospective jurors and exercising numerous peremptory challenges. He made an opening statement, although one was not required. He made objections during the testimony. He cross-examined the State’s witnesses. He presented the defendant’s alibi defense. He made a brief but logical closing argument based on the alibi testimony.

Defendant complains that his attorney did not make a proper trial investigation into the case because no pretrial motions were filed. According to the brief of the State, however, defendant’s attorney did conduct an investigation which included an examination of the State’s file, obtaining a copy of the accomplice’s taped statement, and inspection of the physical evidence. Since all materials were provided by the State, there was no need for the defense attorney to file pretrial motions, particularly discovery motions. State v. Seiss, supra.

We can find nothing in the record suggesting that counsel violated some duty to his client or that if any violation occurred, it prejudiced the client in the defense of the case. Defendant has made no specific showing of prejudice. Defendant’s alibi witness was his girlfriend who testified that he was with her at the time of the robbery. Appellant’s brief contends that there were other alibi witnesses but names none. This contention is inconsistent with the testimony of his girlfriend who stated that he was with her in her mother’s house from 8:00 o’clock in the evening until 3:00 o’clock in the morning, which covered the time period during which the robbery occurred.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

This alleged error concerns the refusal of the trial court to permit the defendant to take the stand and testify in his own behalf.

After the defendant’s witnesses testified, the defendant rested and the State announced it had no rebuttal. The trial court then told the jury the testimony was finished and took a recess. After the recess the assistant district attorney stood and began to address the jury in closing argument when she was interrupted by defense counsel who made a request that the jury be temporarily removed from the courtroom. Counsel then informed the Court that defendant had just at that moment indicated he wished to testify. Counsel explained that he had discussed with defendant his testimony prior to resting, and thought defendant had indicated he did not want to testify, but that now defendant took the position that he had told his counsel he did want to testify. Mr. Hayes then asked the Court to permit defendant to testify.

The trial court, convinced that defendant had in fact told his counsel that he did not want to take the stand and that his new stance was a change of mind, rather than a misunderstanding, refused to reopen the case for defendant’s testimony.

After the arguments and the jury charge and while the jury was out deliberating, the trial court conducted a hearing into the matter, and determined that defendant was in fact overheard by a deputy sheriff to have told his attorney, before resting his case, that he did not want to take the stand.

The issue, then, is simply whether the trial court committed reversible error in refusing to permit defendant to take the stand when the decision to do so occurred after closing arguments began.

LSA-C.Cr.P. article 765(5) provides that at this stage the normal order of trial shall be:

“(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;”

It is within the trial judge’s discretion to admit additional evidence prior to argument. State v. Wise, 434 So.2d 1308 (La.App. 3rd Cir.1983); State v. Bonanno, 373 So.2d 1284 (La.1979). Neither C.Cr.P. article 765 nor its interpretation by the case law suggest that the trial court may allow testimony after arguments begin. In the instant case, the State had begun its closing argument when the request was made that defendant be allowed to testify.

The record reveals that the defendant, not only on this one whispered occasion just before he rested, but on other prior occasions during the trial, had- indicated to his counsel that he did not want to take the stand. It was based on this understanding that defense counsel rested.. In criminal cases the right to testify in one's own behalf is a carefully protected right. However, Louisiana legislation and jurisprudence have articulated guidelines to maintain an orderly trial while still being fair to the defendant. The trial court was correct in denying defendant’s request to take the stand after his trial was over and the closing arguments had begun.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant alleges that his armed robbery sentence was in violation of LSA-R.S. 15:824 because the sentence did not specifically state that the defendant was to be committed to the Louisiana Department of Corrections.

When sentencing was pronounced, the trial court first sentenced defendant to 10 years “at hard labor with the Department of Corrections” indicating that that sentence was “to run concurrent with the armed robbery charge”. Thereafter, in the next breath, the trial court sentenced the defendant in the armed robbery charge “to serve a term of 40 (forty) years at hard labor, without the benefit of probation, parole, or suspension of sentence.”

R.S. 15:824 provides that an individual subject to confinement in a state adult penal or correctional institution shall be committed to the Louisiana Department of Corrections. This article refers to the commitment of felons after final conviction and does not affect the sentence. State ex rel. Matthews v. Henderson, 292 So.2d 496 (La.1974). Defendant’s sentence was “at hard labor” just as the armed robbery statute, R.S. 14:64, requires. The sentence was not rendered invalid by the failure of the trial court to specify the Department of Corrections as the place of commitment.

Nor do we think that an order of commitment in the case of a sentence at hard labor necessarily has to articulate that the prisoner is committed to the Department of Corrections. A sentence at hard labor necessarily requires commitment to the Department of Corrections. LSA-R.S. 15:566(B); see also State v. Navarre, 289 So.2d 101 (La.1974) and State v. Blue, 315 So.2d 281 (La.1975). This assignment of error is without merit.

The conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Alva L. WHITTINGTON, Appellant.
    No. CR83-802.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Robert L. Kennedy, Thomas G. Wilson, Colfax, for appellant.
    Joseph P. Beck, II, Dist. Atty., Greg N. Wampler, Asst. Dist. Atty., Colfax, for ap-pellee.
    Before FORET, LABORDE and YEL-YERTON, JJ.
   FORET, Judge.

Defendant, Alva L. Whittington, was convicted by a six-person jury of simple burglary, a violation of LSA-R.S. 14:62. Subsequently, he was sentenced to serve five years at hard labor. He now appeals, urging one assignment of error:

“The trial court erred in allowing the defendant to be convicted upon a confession or inculpatory statement given by the defendant, which was introduced at trial without any proof that a crime had been committed by someone, that is, without proof of the corpus delicti.”

FACTS

On October 8, 1982, defendant was arrested by the city police in Ruston, Louisiana, and charged with theft. After a search of the defendant’s vehicle revealed band instruments which were marked “Grant Parish”, the Ruston police contacted the Grant Parish Sheriff’s Department. Two deputies were sent to Ruston to investigate.

Upon arriving at the Ruston police station, the two deputies advised defendant of his Miranda rights. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant then told the deputies that he had taken the instruments from the Prospect Church in Grant Parish. He was then arrested and charged with simple burglary.

After the conviction, defendant moved for a post-verdict judgment of acquittal pursuant to LSA-C.Cr.P. Article 821. From a denial of that motion, defendant perfected this appeal.

ASSIGNMENT OF ERROR

By this assignment, defendant contends that the trial court erred in allowing his conviction to stand where the conviction rested solely upon his confession, without any proof of the corpus delicti. We agree.

It is well settled that an accused party cannot be legally convicted on his own uncorroborated confession, without proof that a crime has been committed; that is, without proof of the corpus delicti. State v. Willie, 410 So.2d 1019 (La.1982).

The record shows that the State introduced two witnesses in an attempt to establish the corpus delicti. The first was the Reverend Bobby Joiner, the minister of the church. Reverend Joiner testified that the church was entered into and items were taken, but based his testimony entirely on what was told to him by his son, who was working at the church while studying for the ministry. Reverend Joiner conducted no independent investigation on his own, and in fact, was in the hospital at the time of the alleged burglary.

The second witness called by the State was Deputy Adrian Lamkin, who investigated the crime for the Grant Parish Sheriffs Department. The deputy testified that the Reverend’s son told him that certain items were missing from the church. The deputy therefore concluded that a burglary had been committed.

On both occasions, when it became apparent that the two State witnesses’ testimony was not based on personal knowledge, defendant’s counsel objected on the grounds that their testimony was hearsay. Nevertheless, the trial court allowed the testimony into evidence.

We find that the testimony of both the Reverend and the deputy was hearsay because the statement made by the son was introduced for the truth of the matter asserted, namely, the fact that certain items were stolen from the church. Thus, the veracity of the statements rested on the credibility of the son, a third person not called to testify.

Mere hearsay is insufficient to establish proof of the corpus delicti. State v. Brown, 236 La. 562, 108 So.2d 233 (1959). Since the testimony of both the Reverend and the deputy was based on hearsay, the State did not prove that a crime had been committed. Therefore, the confession, standing alone, is insufficient to sustain this conviction.

For the aforementioned reasons, the decision of the trial court denying the defendant’s post-verdict judgment of acquittal was in error. Defendant’s conviction and sentence are hereby reversed, and a judgment of acquittal is ordered, dismissing the charge against defendant.

REVERSED.

      . This charge of theft was totally unrelated to the case at bar.


author: GUIDRY, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Randy JOHNSON, Defendant-Appellant.
    No. CR83-812.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      John E. Demoruelle, Kinder, for defendant-appellant.
    Alfred R. Ryder, Dist. Atty., John A. Duck, Asst. Dist. Atty., Oberlin, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

The defendant, Randy Johnson, was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. On November 24, 1981, the defendant entered a plea of guilty to a charge of simple robbery, a violation of LSA-R.S. 14:65. The trial court sentenced the defendant to seven years at hard labor, with the sentence to run concurrent with time presently owed to Louisiana Department of Corrections except for three years which would run consecutively. The defendant filed a motion to have an illegal sentence corrected, which was heard on July 12, 1983 and denied.

In his only assignment of error, the defendant contends that the trial court erred in imposing a sentence which is illegal under Article 883 of the Code of Criminal Procedure.

LSA-C.Cr.P. Art. 883 provides:

“If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.” (Emphasis added)

At the hearing on the motion to correct the sentence, counsel for the defendant argued that LSA-C.Cr.P. Art. 883 only provides the court the option of ordering that an entire sentence be served consecutively or ordering that the entire sentence be served concurrently. He asserted, as he does now on appeal, that the trial court is not authorized to “split” a single sentence, i.e., ordering that a portion of the sentence be served concurrently with another sentence, with the remainder to run consecutively. We find no such restriction in the article.

In our view, LSA-C.Cr.P. Art. 883 permits the trial judge to order that a portion of a sentence be served concurrently and the remainder consecutively. We find that this interpretation is more in keeping with the well established jurisprudential policy that the trial judge is afforded wide discretion in imposing sentences within statutory limits. State v. Molinario, 400 So.2d 596 (La.1981). In this regard, we note that our interpretation of Art. 883 does nothing to limit or extend the legislatively established sentencing parameters. It is clear that the trial court could have imposed the maximum seven-year sentence and ordered that the entire sentence be served consecutively. Instead of imposing this more onerous sentence, the trial court chose to order that four years of the seven year term be served concurrently with another sentence. The court was also empowered to impose a three year sentence to run consecutively to the sentence being served. As a practical matter, such a sentence would be the equivalent of that actually imposed. We fail to see any abuse of the trial court’s discretion in imposing sentence.

For the above and foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Richard Leon GUIDRY, Defendant-Appellant.
    No. CR83-834.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Carla F. Chrisco, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

Defendant appeals his conviction for aggravated burglary alleging he proved he was insane at the time of the offense. We affirm.

On March 1, 1982, the defendant, Richard Leon Guidry, was charged by bill of information with aggravated burglary, a violation of LSA-R.S. 14:60. On June 16, 1982, a hearing was had to determine whether the defendant was mentally competent to stand trial. The trial court found that the defendant lacked the mental capacity to proceed and committed him to the Feliciana Forensic Facility, Jackson, Louisiana.

On May 11, 1983, following a second sanity hearing, the court ruled that the defendant was competent and able to assist his counsel for trial.

On June 7, 1983, the defendant was tried before a jury of twelve persons who returned a verdict of guilty as charged. On June 16, 1983, the court sentenced the defendant to serve twenty-five years in a penal institute of this state. The defendant appeals his conviction alleging three assignments of error. However, two of those assignments will not be addressed as they were not briefed by the defendant on appeal.

In the early morning hours of January 22, 1981, at approximately 2:30 A.M., the defendant entered the residence of Ms. Carol Isgitt in Sulphur, Louisiana. The defendant entered through a window on the dark side of Ms. Isgitt’s apartment and attacked Ms. Isgitt as she sat in her bed. She had been awakened by noises in her apartment. The defendant jumped on Ms. Isgitt and grabbed her by the face and throat but she began screaming and tried to fight off his attack. During the struggle she scratched the defendant on both sides of the neck.

The attack lasted only for a moment. Frightened by her screams the defendant ran from the apartment, grabbing Ms. Is-gitt’s purse on his way out. Ms. Isgitt then telephoned the police and an officer was dispatched to the residence. The officer radioed a description of the intruder to all units. Meanwhile, another officer of the Sulphur Police Department had stopped the defendant for speeding and running a stop sign. The officer observed that the man he had stopped fit the description of the person who had fled from Carol Isgitt’s apartment. A purse belonging to the victim was found in the cab compartment of defendant’s truck. The officer then took the defendant to Ms. Isgitt’s apartment where she identified him as the intruder who had attacked her. When Ms. Isgitt identified the defendant as the perpetrator, he remarked, “How could she recognize me, it was dark in there?”

The defendant was arrested and subsequently charged with aggravated burglary, a violation of LSA-R.S. 14:60. As aforementioned, the defendant was tried before a jury of twelve and found guilty as charged. Defendant appeals his conviction alleging three assignments of error, however, only one of these assignments will be addressed due to appellant’s failure to brief the other issues.

The defendant argues that the trial court erred in finding the defendant guilty because the defendant proved by a preponderance of the evidence that he was insane at the time of the offense. The defendant argues that the state failed to rebut the evidence presented by the defendant and that no rational trier of fact could have concluded that defendant was sane at the time he committed the crime charged.

In Louisiana, both by statute and jurisprudence, there is a presumption that a defendant is sane and responsible for his actions. State v. Marmillion, 339 So.2d 788 (La.1976); State v. Poree, 386 So.2d 1331 (La.1980); State v. Roy, 395 So.2d 664 (La.1981); and State v. Brogdon, 426 So.2d 158 (La.1983). LSA-R.S. 15:432.

A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may nonetheless be destroyed by rebutting evidence, ... such is the presumption that the defendant is sane and responsible for ... his actions; _LSA-R.S. 15:432.

The state is not required to offer any proof of the defendant’s sanity nor is it required to offer evidence to rebut defendant’s evidence. The burden of proving his insanity at the time of the commission of the offense .lies solely on the defendant. LSA-C.Cr.P. art. 652.

The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence. LSA-C.Cr.P. art. 652. The relevant inquiry on appeal is whether the defendant adduced evidence of his insanity at the time of the offense such that any rational trier of fact could have concluded that he carried the burden of proving his insanity by a preponderance of the evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 [61 L.Ed.2d 560] (1979). State v. Brogdon, 426 So.2d 158 (La.1983).

The defendant asserts that both psychiatrists called as experts testified that in their opinion the defendant did not know the difference between right and wrong at the time he committed this offense. The record does not support this allegation. On cross-examination, Dr. Rathmell was asked straightforward:

Q. Dr. Rathmell, to begin at the end, you said ‘not realize some of the things that he was doing’. That’s not the same as not being able to distinguish between right and wrong, is it?
A. No, sir.
Q. As a matter of fact, you cannot give this Court a professional psychiatric opinion that at the time this crime was committed that he was unable to distinguish between right and wrong, can you?
A. No sir, I cannot.

Dr. Gilíes Morin also examined the defendant. He testified on cross-examination:

Q. And your opinion in this case was formed after, based on your experience, after a one-hour interview with the defendant, is that correct?
A. That’s correct, sir.
Q. And based solely, aside from your experience, on that one-hour interview?
A. Yes, sir.
Q. And in light of your thirty years experience, the best you can do is say that it is possible that he did not know the difference between right and wrong?
A. That’s correct, sir.

Thus it appears from the testimony of the two experts who testified as to the defendant’s mental state at the time .-of the offense, that the jury could easily have concluded that the defendant failed to establish, by a preponderance of the evidence, that he was insane at the time of the offense. One expert formed his opinion of the defendant’s state of mind after a one-hour interview of the defendant. The other expert, Dr. Rathmell, did not examine the defendant until June 15, 1982, almost five months after the incident took place. Moreover, she had never examined the defendant before and the results of her examination were based strictly on what the defendant told her.

The defendant also argues that the case of State v. Roy, 395 So.2d 664 (La.1981) is dispositive. This does not reflect an accurate comprehension of State v. Roy. In Roy, both experts who testified had previously committed the defendant to a state hospital and had diagnosed him as a paranoid schizophrenic. Roy, supra at 668. In the present case, the experts had never had a previous encounter with the defendant and based their opinions on a one-hour interview and on information given them by the defendant himself.

In addition, the expert testimony here was very inconclusive, as demonstrated above. The expert testimony in Roy was quite firm and a conclusive diagnosis of that defendant’s mental condition was presented to the jury. Roy did not present the same situation as the present case.

However, the facts of State v. Parker, 416 So.2d 545 (La.1982) do appear to be closely analogous to this case. The doctors in Parker testified that they each examined the defendant for about an hour, that they could not say for sure what his condition was, and that they relied on information provided by the defendant. Parker, supra at 551. The expert testimony in Parker thus appears to be much like the testimony in the present case. In both Parker and the present case, the jury found the defendant guilty. In Parker, the court, after examining the expert testimony presented at trial, held:

Here, the jury considered the medical evidence along with the lay testimony and the remainder of the evidence, and decided that the defendant had failed to prove by the necessary preponderance that he was insane or even intoxicated at the time of the offense.
After viewing the record, we cannot say that the jury was wrong. A rational, objective fact-finder could well have concluded that the medical testimony, while scholarly, was largely based on defendant’s self-serving revelations, and that it did not support the defendant’s insanity plea.
None of the testifying physicians had actually treated the defendant for any mental, emotional, or physical ailment. They were consulted only for the purpose of appearing as expert medical witnesses. Parker at 551.

We find that a rational trier of fact might well have been unconvinced by this testimony that the defendant was insane at the time of the offense. It is for the jury to consider both the expert and lay testimony given and to determine whether they believed that the defendant had successfully rebutted the presumption that he was sane at the time of the offense. State v. Parker, 416 So.2d 545, 551 (La.1982).

Lastly, we have reviewed the record and discovered no patent errors warranting reversal. State v. White, 404 So.2d 1202 (La.1981).

For the reasons assigned hereinabove, the appellant’s conviction is affirmed.

AFFIRMED.

      . Assignments of error which are not briefed are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Lemoine, 403 So.2d 1230 (La.1981); State v. Washington, 430 So.2d 641 (La.1983).


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Kevin BERZAS, Defendant-Appellant.
    No. CR83-864.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Anthony G. Terracina, Opelousas, for defendant-appellant.
    Donald Richard, Asst. Dist. Atty., Opel-ousas, for plaintiff-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   STOKER, Judge.

Defendant appeals from his convictions by a six-person jury on three counts of negligent homicide for which he received sentences of five years in the custody of the Department of Corrections on each count to be served consecutively. We affirm.

PACTS

The accident out of which this prosecution arose occurred during the early morning hours of May 18, 1982. Just before 5:00 a.m. defendant lost control of his car and struck and killed Dorothy Fontenot, Dorothy’s 13-year-old daughter, Donna Fontenot, and Dorothy’s 17-year-old brother, Chris Bolfa. Dorothy’s son, Tony Vid-rine, was a passenger in the car driven by defendant.

The evidence established that defendant, Tony Vidrine, and Dorothy Fontenot had been drinking heavily the night before the accident and continued to drink up until the time defendant and Tony left Dorothy’s house-trailer in defendant’s car. According to Tony, the two left the trailer to go to the home of a third person who could beat defendant at arm wrestling. Defendant claims Tony and Dorothy had a fight and he took Tony for a ride to cool him off.

After driving around for an undetermined amount of time, defendant attempted to return to Dorothy’s trailer. Defendant claims that Tony did not want to return and, after wrestling with him, grabbed the steering wheel causing the accident. Tony denies ever having grabbed the steering wheel. After the accident, defendant wandered away from the scene and was found just before 10:00 a.m. that same morning sitting under a shed about 200 yards from Dorothy’s trailer. Tests indicate that defendant had a blood alcohol level of .12 at 10:00 a.m. and Tony Vidrine had a level of .14. Dorothy had a blood alcohol level of .26 at the time she was killed.

In his brief on appeal, defendant makes the following assignments of error:

“(1) The road slip tests conducted by the expert were objected to because they failed to consider the fact that the roads were wet.
“(2) The court allowed the State to recall a witness who had made an error in his testimony. This witness’s testimony had confirmed that Tony Vidrine had admitted fighting for the wheel.”

ASSIGNMENT NUMBER ONE

In this assignment defendant argues that the testimony of the State’s expert in accident reconstruction and speed determination was in error because the expert failed to consider the road wetness in his test skids at the accident site. The expert testified the defendant’s car was traveling at approximately 98 m.p.h. at the time of the accident. Tony Vidrine claimed the ear was traveling 100 or 120 m.p.h. and defendant claims to have been going only 55 or 60 m.p.h.

When questioned regarding road wetness on cross-examination, the expert testified that wetness would make the friction coefficient used in his skid tests different. In his brief defendant states, “Had this road wetness been considered, it would have changed drastically the estimated speed of the vehicle.” Even assuming that this contention by the defendant is correct, there is no evidence that the road was wet at the time of the accident. Defendant’s own testimony and the statement he gave to the police indicate that rain began while he was sitting under the shed after the accident.

The State’s expert was accepted by defendant in the field of accident reconstruction and speed determination without objection, and defendant introduced no evidence showing the test results were incorrect. On re-direct, the expert testified that there were no factors present on the roadbed which would create a variable in the formula he used to determine the speed of the ear. This assignment of error is without merit.

ASSIGNMENT NUMBER TWO

Defendant argues in this assignment that the trial court improperly allowed the State to impeach one of its own witnesses. The conflict arose regarding the testimony of Sgt. Larry Lejeune of the Louisiana State Police. The pertinent testimony concerned the defendant’s claim that Tony Yid-rine grabbed the steering wheel causing the accident.

Initially, on direct examination, Sgt. Le-jeune testified that Tony stated that he attempted to take the wheel of the car. Sgt. Lejeune says the statement was made at the courthouse late in the morning after the accident. On cross-examination, Sgt. Lejeune stated that both Tony and the defendant gave him the story about fighting for the wheel. After this testimony, Sgt. Lejeune was excused but was kept under subpoena.

Later in the trial the prosecution re-called Sgt. Lejeune to the stand to clarify his testimony regarding this matter. Defendant objected on the ground that the prosecution was attempting to impeach its own witness. The trial court allowed the testimony. When questioned again, Sgt. Lejeune testified that he had previously been mistaken regarding Tony’s statement. Sgt. Lejeune then stated that only the defendant said that Tony grabbed the wheel; Tony never made such a statement. We note that neither of the written statements by Tony and the defendant entered into evidence mention that Tony grabbed the wheel.

We find that the additional testimony of Sgt. Lejeune was not impeachment, but was only an attempt by the prosecution to clarify a mistake in the witness’s testimony. Defendant had full opportunity to cross-examine Sgt. Lejeune on this point, and did so. Sgt. Lejeune’s admission of a previous mistake is a matter which concerns the weight to be given his testimony; it is not impeachment. See State v. Jackson, 362 So.2d 1082 (La.1978). The jury apparently did not accept the defense presented.

For the above reasons, defendant’s convictions are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Anthony J. LOMAS, Defendant-Appellant.
    No. CR83-879.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Anthony G. Terracina, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., David Miller, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

The defendant, Anthony J. Lomas, pled guilty to Indecent Behavior with a Juvenile, to-wit: a 16-year old female. A pre-sentence investigation (PSI) was ordered by the trial court. The PSI disclosed the defendant had several other infractions with the law prior to the present offense although none involved offenses against the person. The report also revealed the defendant had since married (as had the victim) and his wife was expecting a child.

The trial judge, after reviewing the PSI, sentenced the defendant to 18 months imprisonment. Defendant now attacks the sentence as excessive and further complains that the trial judge failed to comply with La.C.Cr.Pro. art. 894.1. However, counsel for appellant fails to articulate any abuse of discretion in brief other than defendant’s denial of certain prior criminal activity.

Conviction of the crime of Indecent Behavior With Juveniles, La.R.S. 14:81, carries a maximum sentence of five years imprisonment. We find that the sentence imposed is not “apparently severe” and that the trial judge adequately complied with art. 894.1 in stating the factual basis and individual considerations on which the sentence was based. The trial judge questioned the defendant, read the PSI, and noted, inter alia, the defendant’s criminal record, the seriousness of the crime, potential harm to the victim, and defendant’s consequent need for correctional treatment.

For the reasons assigned, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Art. 894.1. Sentence guidelines; generally
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant's criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.
      Added by Acts 1977, No. 635, § 1.


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Lawrence K. RICHARD, Defendant-Appellant.
    No. CR83-1000.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Lawrence B. Sandoz, III, Sandoz, Sandoz & Schiff, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., David Miller and Josie Frank, Opelousas, for plaintiff-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Lawrence Richard, was charged by bill of information with distribution of marijuana in St. Landry Parish on March 10, 1980 in violation of LSA-R.S. 40:966 A. Defendant entered a plea of not guilty, and elected to be tried by judge alone. On May 31, 1983, the defendant was tried and found guilty. The defendant was sentenced to serve three years at hard labor in the custody of the Louisiana Department of Corrections. The defendant relies on one assignment of error, complaining that his sentence is excessive.

FACTS

Marcel Poullard, an undercover narcotics agent for the Louisiana State Police, was on assignment in St. Landry Parish on March 10, 1980. Agent Poullard was with Joseph “Winky” Savoy, a friend of the defendant. Savoy knew the defendant by the name of “Tecou”. Savoy testified that he and the defendant were “busted” together in 1979. Savoy directed Agent Poullard to the defendant’s residence where Agent Poullard advised the defendant that he wanted to buy some narcotics. The defendant responded that he had some marijuana which he had just gotten in from Houston and it was “good stuff”. Agent Poullard then purchased from the defendant one bag of marijuana for $25.

At trial, the defendant took the stand and denied ever seeing Agent Poullard and selling him marijuana. Under cross-examination, the defendant admitted that in 1973 he was convicted of attempted rape and served nine years in the State penitentiary.

Agent Poullard testified that he sealed the marijuana in an evidence envelope, tagged it, and brought it to the Acadiana Regional Crime Lab for testing. Approximately one week later the crime lab certified that the envelope contained 15 grams of marijuana.

ASSIGNMENT OF ERROR

The defendant complains that a three year sentence at hard labor is excessive because of the small amount of marijuana involved.

Article I § 20 of the Louisiana Constitution prohibits the imposition by law of excessive punishment. For a sentence to be excessive, the penalty imposed must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Morgan, 428 So.2d 1215 (La.App. 3rd Cir.1983), writ denied 433 So.2d 166 (1983); State v. Bonanno, 384 So.2d 355 (La.1980). The sentencing court is given wide discretion in the imposition of sentences within statutory limits, and the sentence should not be set aside as excessive in the absence of a manifest abuse of the sentencing court’s discretion. State v. Williams, 441 So.2d 832 (La.App. 3rd Cir.1983); State v. Abercrumbia, 412 So.2d 1027 (La.1982).

The maximum penalty for distribution of marijuana is imprisonment at hard labor for ten years and a fine of $15,000. LSA-R.S. 40:966 B.(2). Defendant’s sentence falls within the statutory limits. However, it is judicially recognized that a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979).

Defendant urges us to consider the small amount of marijuana he sold to Agent Poullard. He cites State v. Bing, 410 So.2d 227 (La.1982) and State v. Tilley, 400 So.2d 1363 (La.1981) in support of his contention. In individualizing the sentence to the offender, comparison between the defendant’s punishment and that dealt to other offenders of similar offenses is only a factor to be considered when we review a sentence for excessiveness. State v. Telsee, 425 So.2d 1251 La.1983).

The sentencing guidelines enumerated in LSA-C.Cr.P. Art. 894.1 provide appropriate criteria to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous alternatives. State v. Sepulvado, supra.

The sentencing court referred to the presentence investigation. It noted the defendant was not a first offender. He was convicted of attempted rape and sentenced to serve nine years at hard labor. The defendant was paroled on March 10, 1976 and violated parole on September 10, 1976. He was discharged from the Louisiana State Penitentiary in October of 1978. In 1980, defendant was arrested by the St. Landry Parish Sheriff’s Office for murder and disturbing the peace, but the cases were dropped due to lack of evidence. In March of 1980 he was convicted of theft of gasoline. The sentencing court then made specific mention of LSA-C.Cr.P. Art. 894.1 and commented that: defendant was in need of correctional treatment; a lesser sentence would deprecate the seriousness of the crime; and, because of his prior felony conviction, he was not eligible for probation.

Although the sentencing court did not specifically discuss mitigating factors, the record reflects sufficient facts that allowed the sentencing court to individualize the defendant’s sentence. The record shows that the defendant is 28 years of age, has a 9th grade education, and lives with his mother in Grand Coteau. At sentencing, the defendant did not submit any mitigating factors. The trial court did refer to a letter of recommendation from an officer with the St. Landry Parish Sheriff’s Office, but his discussion of that letter in the record indicates that it was not written in support of leniency.

The defendant’s sentence is not apparently severe and falls in the lower range. Considering the wide discretion warranted a sentencing court, the imposition of its sentencing choice within the statutory limits, and in the absence of a manifest abuse of its discretion, a sentence will not be set aside as excessive.

After a careful review of the record, we find the sentencing court did not impose an excessive sentence.

DECREE

For the foregoing reasons, the defendant’s sentence is affirmed.

AFFIRMED.


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Alton A. COBB, Defendant-Appellant.
    No. K83-1103.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      George Perez, Lake Charles, for defendant-appellant.
    P. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   CUTRER, Judge.

Alton A. Cobb was charged by bill of information with the crime of making obscene telephone calls in violation of LSA-R.S. 14:285. In November 1983, the defendant pleaded nolo contendere to the charge and was sentenced to serve a term of one year in the parish jail and to pay a fine of $500.00 plus court costs, in default of the payment of which the defendant would be required to serve sixty days in jail. The one year jail term was suspended, and the defendant was placed under supervised probation for a period of two years, subject to the conditions of LSA-C.Cr.P. art. 895, “with a special condition that he serve thirty days in jail.”

The defendant assigns as error the imposition of the special condition of probation, that the defendant serve thirty days in jail.

Defendant was charged and convicted under R.S. 14:285. He was, therefore, subjected to a maximum term of imprisonment of two years; there is no provision for hard labor under this statute. Misdemeanors are negatively defined to be crimes other than felonies, and a felony is defined as being an offense punishable by death or imprisonment at hard labor. LSA-R.S. 14:2; C.Cr.P. art. 933. Therefore, violations of R.S. 14:285, which are not punishable by imprisonment at hard labor, are deemed misdemeanors.

Having concluded that the crime of which defendant was convicted was a misdemeanor, the question arises as to whether the trial court can, as a special condition of probation, order that the defendant serve thirty days in jail.

LSA-C.Cr.P. art. 895 sets forth the conditions of probation that may be imposed by the trial court in misdemeanor and felony cases:

“A. When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following:
“That the defendant shall:
“B. In felony cases, an additional condition of the probation may be that the defendant shall serve a term of imprisonment without hard labor for a period not to exceed two years. ”

Paragraph B specifically limits the condition of time to be spent in jail (not to exceed two years) to felony cases. This provision does not authorize the trial court, in misdemeanor cases, to order that, as a condition of probation, the defendant serve time in jail. Such a condition in misdemeanor cases is illegal. State v. Upton, 382 So.2d 1388 (La.1980).

We shall reverse the trial court sentence only insofar as it imposed this illegal condition of probation. The remainder of the sentence shall be affirmed.

For these reasons, the judgment of the lower court, only insofar as it orders the defendant to serve thirty days in jail as a condition of probation, is reversed and set aside. In all other respects, the conviction and sentence are affirmed.

REVERSED IN PART: AFFIRMED IN PART.

      . This case was presented to this court as a writ application. We are considering it as an appeal since the maximum sentence for this charge is two years imprisonment. Under LSA-C.Cr.P. art. 779, defendant was entitled to a jury trial. Under Article V, § 10 of the 1974 Constitution defendant is entitled to an appeal. Accordingly, we shall treat the writ application as an appeal.


text:
    STATE of Louisiana v. Darrell ALEXANDER.
    No. K83-1123.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Charles Brandt, Asst. Dist. Atty., Lafayette, for defendant-appellant.
    L. Paul Gianfala, Church Point, for plaintiff-appellee.

      Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

The defendant was charged with one count of attempted simple robbery, a violation of LSA-R.S. 14:27, 14:65, and two counts of armed robbery, a violation of LSA-R.S. 14:64. On July 19, 1983, the defendant filed a motion to suppress evidence seized from his person. After a hearing, the trial court granted the motion to suppress. The State applied for a writ of certiorari. We granted the writ to consider the correctness of the trial court’s suppression of the evidence.

On November 20, 1982, Officer Ken Gui-dry of the Lafayette City Police Department was conducting surveillance of a Texaco Self-Service station located on University Street in Lafayette. The station was being watched with particular care, as it had been the target of several armed robberies within the previous two weeks. The perpetrator of the robberies had been described to police as a middle aged black male, 5'8" tall, with a medium build and a well groomed, medium length Afro haircut. As Officer Guidry observed the station, he noticed the defendant at the rear of the station near the restrooms. The defendant met the description of the armed robbery suspect. There were no cars at the station at that time. Guidry became suspicious and decided to investigate.

When Guidry pulled into the station, the defendant, who had been walking in the direction of the patrol car, immediately turned away and walked back to the rear of the building. Guidry drove to the rear of the station, but did not see the defendant. He assumed that the defendant had gone into the restroom. Within two or three minutes, the defendant exited the restroom and began walking away from Guidry toward the street. At this point, Guidry alighted from his patrol car and ordered the defendant to place his hands on the front of the patrol car. He then conducted a pat down search of the defendant. In the course of the search, Guidry detected a large lump in the defendant’s rear pocket, and a portion of what appeared to be a nylon stocking hanging outside the pocket. Guidry removed the contents of the pocket, which contained a pair of ladies pantyhose with the legs tied together. At that point, Guidry asked the defendant for identification. Upon receiving it, Guidry checked with police headquarters to determine whether there were any outstanding warrants for the defendant. He was advised that a subject having the same name and fitting the same description had been arrested two months earlier for an armed robbery at the same location.

Guidry then called for assistance from another unit. Upon its arrival, Guidry searched the restroom from which the defendant had exited and found a .22 caliber revolver in a garbage can. The defendant was thereafter placed under arrest.

The only item of evidence sought to be suppressed is the pair of ladies pantyhose taken from the pocket of the defendant. The trial court granted the defendant’s motion, suppressing the evidence. In its only assignment of error, the State urges that the trial court erred in granting the motion.

LSA-C.Cr.P. 215.1 provides:

“A. A law enforcement officer may stop a person in a public place whom he reasonably believes is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions. (Emphasis added).
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably believes that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon.”

The right of law enforcement officers to stop and interrogate persons reasonably suspected of criminal conduct is also recognized by state and federal jurisprudence. State v. Belton, 441 So.2d 1195 (La.1983); State v. Andrishok, 434 So.2d 389 (La.1983); State v. Chopin, 372 So.2d 1222 (La.1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In State v. Andrishok, supra, the Supreme Court held:

“_that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Chopin, supra.

In State v. Belton, supra, the Supreme Court further stated:

“The totality of the circumstances, ‘the whole picture,’ must be considered in determining whether reasonable cause exists. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, State v. Chopin, supra; State v. Truss, 317 So.2d 177 (La.1975), this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause, State v. Williams, 421 So.2d 874 (La.1982); State v. Wade, 390 So.2d 1309 (La.1980).”

Applying the foregoing principles to the facts of the instant case, we find that Officer Guidry had sufficient knowledge of facts and circumstances to justify an investigatory stop. Guidry had knowledge that the Texaco station had been a target of several recent robberies, and noted that the defendant fit the description of the alleged perpetrator. These factors prompted Officer Guidry to pull his patrol car into the station. Upon seeing the patrol car, the defendant made a deliberate attempt to avoid contact with the officer by retreating to the restroom at the rear of the station. No detention or attempted detention had occurred up to this point. See State v. Belton, supra. After exiting the restroom, the defendant made a second attempt to avoid contact with Officer Guidry. These attempts to evade the officer, coupled with the other facts and circumstances known to Guidry, justified the investigatory stop.

The second question is whether Guidry was authorized to frisk the defendant’s outer clothing for a dangerous weapon. LSA-C.Cr.P. Art. 215.1(B). Once a lawful investigatory stop is made, a police officer is justified in frisking a suspect for weapons when he reasonably suspects that he is in danger of life or limb. State v. Snoddy, 389 So.2d 377 (La.1980); State v. Jernigan, 377 So.2d 1222 (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980). In order to justify a frisk for weapons, it is sufficient that an officer establish a substantial possibility of danger by pointing to particular facts which support such an inference. State v. Bolden, 380 So.2d 40 (La.1980), cert. denied, 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980).

We find that Officer Guidry was clearly justified in frisking the defendant for a dangerous weapon. As we have stated above, the defendant’s suspicious activity, coupled with the other facts and circumstances known to the officer, gave rise to a reasonable belief on the part of the officer that the defendant was the perpetrator of the recent armed robberies at the Texaco station, as well as a reasonable belief that he may have been preparing to commit another offense. The fact that the suspected offense involved a dangerous weapon clearly established a substantial possibility of danger. Furthermore, upon detecting the bulge in the defendant’s rear pocket, Guidry was justified in removing the stocking. Although Guidry knew that the pocket contained a nylon stocking (as he could see a portion of it hanging from the pocket), the pocket could also have contained a weapon. Guidry testified that he suspected that the defendant’s pocket could also have contained a weapon. He also knew that nylon stockings are often used as masks during the commission of crimes. Under these circumstances, we find that the officer was justified in frisking the defendant, and in removing the nylon stocking from the defendant’s pocket. The trial court erred in granting the motion to suppress.

For the above and foregoing reasons, the writ heretofore granted is made peremptory. Accordingly, the judgment of the trial court dated October 18, 1983 is reversed and set aside and judgment is rendered dismissing defendant’s motion to suppress and this matter is remanded to the trial court for further proceedings consistent with the views herein expressed.

REVERSED AND RENDERED.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Fannie Mae Smith HICKS, Defendant-Appellant.
    No. CR83-1160.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, for plaintiff-appellee.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Defendant, Fannie Mae Smith Hicks, pleaded guilty to attempted distribution of marijuana in violation of LSA-R.S. 40:966 A(l) and 14:27. She was sentenced to serve five (5) years at hard labor, the maximum penalty. We find this sentence to be excessive and accordingly vacate and remand for resentencing in accordance with the law.

FACTS

Defendant is twenty-five (25) years old, single and the mother of two (2) children. She was arrested after selling a small amount of marijuana to an undercover police officer for $35, at a public restaurant. Defendant was charged by bill of information with distribution of a controlled dangerous substance (marijuana). LSA-R.S. 40:966 A(l). Pursuant to a plea bargain, she pleaded guilty to a lesser charge of attempted distribution of marijuana. LSA-R.S. 40:966 and 14:27. Following a presen-tence investigation, the trial court sentenced defendant to five (5) years at hard labor, the maximum penalty for the offense.

ISSUES

Defendant now appeals on the basis of three (3) assignments of error, which place at issue the trial judge’s compliance with the sentencing guidelines of C.Cr.P. art. 894.1 and the excessiveness of the imposed maximum sentence.

APPLICABLE LAW

Trial judges are granted great discretion in imposing sentences, but even sentences within statutory limits may be reviewed on appeal and found to be excessive under certain circumstances. State v. Jones, 398 So.2d 1049 (La.1981). We recognize that sentences must be individualized to be compatible with the particular offender, as well as the offense. This is theoretically accomplished by the trial judge’s consideration of the various criteria and sentencing guidelines in LSA-C.Cr.P. art. 894.-1.

The record contains articulated reasons by the trial judge for imprisonment which reflect specific consideration of the three criteria under paragraph A of LSA-C.Cr.P. art. 894.1. The trial judge likewise reviewed the mitigating and applicable provisions of paragraph B of the article and stated that only subsection eleven (11) was worthy of consideration in the defendant’s case. Nonetheless, he held that this mitigating consideration did not override the necessity for imprisonment.

We hold that the trial judge adequately stated for the record the considerations of paragraph A and B of LSA-C.Cr.P. art. 894.1 and the factual basis for imposing sentence in compliance with paragraph C. Accordingly, defendant’s assignments of error nos. 1 and 2, which allege non-compliance by the trial court with the sentencing guidelines of article 894.1, are without merit.

Louisiana Constitution, article 1, section 20 prohibits the imposition of excessive punishment. Although within the statutory limit, a maximum sentence may, in certain instances, violate a defendant’s constitutional' right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979).

We agree with defendant’s allegations in assignment of error no. 3, that a five (5) year, maximum sentence, is excessive in this instance. The reasons articulated by the trial judge at sentencing do not adequately support the imposition of a maximum penalty, although we agree that incarceration is appropriate in this instance. Our review of recent drug cases convinces us that a five-year maximum imprisonment penalty for the first drug offense of attempted distribution of marijuana is excessive. State v. Rachal, 428 So.2d 805 (La.1983); State v. Jones, supra; State v. Grey, 408 So.2d 1239 (La.1982); State v. Bing, 410 So.2d 227 (La.1982); compare, State v. Fergus, 418 So.2d 594 (La.1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983). In finding this sentence excessive, we specifically do not hold ‘ that five (5) years imprisonment at hard labor is, on its face, an excessive sentence for attempted distribution of marijuana. The defendant is twenty-five (25) years old and the mother of two (2) small children. Her criminal record reveals one prior violation of a parish ordinance forbidding the sale of alcohol on Sunday. She is not a prior felony or drug offender. In State v. Tilley, 400 So.2d 1363 (La.1981), the Louisiana Supreme Court stated:

“When a small-time end man receives the same sentence as a large scale drug wholesaler, the sentences are not individualized to fit the particular defendant and the offense.”

We agree that incarceration is appropriately within the discretion of the trial court in these instances. However, the punishment for a first-time drug offender, who sells a small portion of marijuana and pleads guilty to a lessor attempt charge, does not warrant a maximum sentence of five (5) years. Such punishment is grossly out of proportion to the crime and its circumstances. The sentence makes no measurable contribution to acceptable goals of punishment and hence, is nothing more than purposeless and needless imposition of prolonged pain and suffering. Therefore, a five (5) year sentence, in this instance, is an abuse of the trial court’s discretion and constitutes excessive punishment. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).

The defendant’s guilty plea has not been attacked in this appeal, and its validity is not before us.

Accordingly, defendant’s conviction is affirmed, but her sentence is vacated and the case is remanded to the trial court for resentencing in accordance with the views expressed herein.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

      . The maximum penalty for distribution of a controlled dangerous subject, namely, marijuana is imprisonment at hard labor for nor more than ten (10) years and a fine of not more than 115,000. LSA-R.S. 40:966[B](2). The maximum penalty for an attempt charge of this violation is one-half (½) of the largest fine and/or term of imprisonment, or both. LSA-R.S. 14:27.