text:
    Jesse D. LAMBERT v. DEPARTMENT OF CORRECTIONS, LOUISIANA CORRECTIONAL AND INDUSTRIAL SCHOOL.
    No. 83 CA 0972.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    James J. Brady, Gravel, Robertson & Brady, Alexandria, for appellant.
    James Wayne and Betty Jean G. Ray, Asst. Attys. Gen., Dept, of Justice, Baton Rouge, for appellee.

      Robert R. Boland, Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    ■ Before COVINGTON, C.J., and COLE and SAVOIE, JJ.
   SAVOIE, Judge.

Appellant, Jesse D. Lambert, appeals the Louisiana Civil Service Commission’s decision upholding his termination by the Department of Corrections.

Lambert was employed as a Corrections Security Officer by the Department of Corrections at the Louisiana Correctional and Industrial School at DeQuincy. On June 27, 1982, he worked the 9:30 P.M. to 5:30 A.M. shift in dormitory H-7 and H-8. Three persons escaped from the institution that night, including one, Jerry Carpenter, from H-8. Throughout his shift, Lambert failed to report Carpenter’s absence. As a consequence, Carpenter’s escape was not detected until approximately 7:00 A.M. on June 28, 1982. On September 22, 1982, Lambert was terminated on the ground that he failed to properly report the number of inmates in the dormitory under his supervision on the date of the escape.

Lambert appealed the termination to the Civil Service Commission. After a hearing on the matter, the Commission upheld Lambert’s termination. He appeals that decision.

ASSIGNMENTS OF ERROR

Appellant alleges that the Civil Service Commission erred in:

(1) concluding that Carpenter escaped prior to 5:30 A.M. on June 28, 1982, and that appellant was negligent in failing to report the escape;
(2) failing to invoke the presumption that Carpenter’s testimony would have been adverse to the appointing authority since he was not called; and
(3) upholding the termination of appellant.

ASSIGNMENT OF ERROR NO. 1

The scope of review of a Civil Service Commission decision extends to both the law and the facts. La. Const, art. 10, § 12. The standard of review of decisions of the Commission is the same as that in any other civil case. Thus, the findings of fact of the Commission must be afforded great weight and will be upheld absent manifest error. Brook v. Louisiana State University, Baton Rouge Campus, 405 So.2d 1216 (La.App. 1st Cir.1981).

A hearing was conducted by the Civil Service Commission at which the following findings of fact were made. Carpenter, one of thirteen white males, was assigned to dormitory H-8 at the time of the incident. Carpenter was not in the dormitory at any time from 10:00 P.M. until 5:00 A.M. according to the testimony of three other inmates assigned to H-8. Carpenter had not been called out of the dormitory for any reason during Lambert’s shift. Carpenter’s escape was initially discovered by an officer on the next shift between 5:30 A.M. and 6:00 A.M. on June 28, 1982.

From the foregoing facts, the Commission found that Carpenter escaped before 5:30 A.M. on June 28, 1982, and that Lambert had given an inaccurate head count during his shift. The evidence supports the conclusions of the Commission. The only evidence to the contrary was the testimony of appellant, Lambert.

ASSIGNMENT OF ERROR NO. 2

Appellant alleges that the Commission erred in finding that the appointing authority had carried the burden of proof when it failed to call Carpenter to testify. He argues that the failure to call Carpenter gives rise to the presumption that his testimony would have been unfavorable to the appointing authority.

We find that the appointing authority did prove its case by a preponderance of the evidence based upon the findings of the Commission. Therefore, no unfavorable inference should attach to the failure to call Carpenter. Even if an unfavorable inference was to be attached to the failure to call this witness, that in itself will not outweigh sworn evidence accepted as credible by the trier of fact. Cage v. Shainberg’s Stores of La., 413 So.2d 564 (La.App. 1st Cir.1982). Thus, the Commission did not err in failing to find for appellant on the basis that Carpenter did not testify.

ASSIGNMENT OF ERROR NO. 3

Finally, appellant contends that the Commission erred in upholding his termination. Basically, appellant here argues that termination was too severe a penalty for this offense.

“While a person who has gained permanent status in the classified state service may be subjected to disciplinary action, such as dismissal, if the conduct complained of by the appointing authority impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged, (Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962)), the burden of proving that the action taken against the disciplined employee was proper and warranted falls on the appointing authority.” Dent v. Department of Corrections, Louisiana Correctional Institute for Women, 413 So.2d 920 (La.App. 1st Cir.1982).

Testimony at the hearing was to the effect that the primary duty of security officers at the institution was to keep a proper count of the offenders under their supervision. The purpose of the institution was to maintain custody of the offenders assigned there. This task is impossible to achieve if an accurate count is not provided by each officer.

For some reason, appellant failed to report the absence of one of the inmates charged to his supervision. The escape of two others was discovered at approximately 9:30 P.M. on June 27,1982. The absence of Carpenter was not discovered until after 5:30 A.M. on June 28, 1982, although appellant was asked several times during his shift to verify the count in his area. Appellant’s action clearly impaired the efficiency of the “chase” operation in the finding of the escapees.

This case is remarkably similar to Dent v. Department of Corrections, supra, wherein a guard was found asleep at her post at the Louisiana Correctional Institute for Women. Therein, we held:

“Reviewing the fact findings of the Civil Service Commission for manifest error, we find the conclusion that Ms. Dent was asleep is amply supported by credible evidence. Even if Ms. Dent had not been asleep, she was so inattentive as to be unaware of the entry of her supervisor into the room. Her job was to maintain an alert surveillance of prisoner movements and her failure to do so could seriously have endangered her life, the lives of her fellow workers, and the lives of prisoners.
“Her inattentiveness was ample cause for dismissal.”

Likewise, the false report of the inmate count herein was ample cause for appellant’s dismissal.

For the above and foregoing reasons, the decision of the Commission is affirmed. All costs are to be paid by appellant.

AFFIRMED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Wilburn M. FLENIKEN.
    No. 83-KA-1324.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Stacey Moak, Baton Rouge, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Acting on information supplied by a confidential informant, Captain Barnett of the East Baton Rouge Parish Sheriff’s Office, on June 22, 1981, obtained and executed a warrant to search Wilburn Fleniken’s home for “a quantity of controlled dangerous substance to-wit: Marijuana and Cocaine.” The search resulted in the seizure of half an ounce of cocaine and eleven quaalude tablets. Fleniken was subsequently arrested and charged with possession with intent to distribute cocaine and methaqualone.

Fleniken filed a motion to suppress the seized evidence and a motion to disclose the identity of the confidential informant, both of which the trial court denied. Reserving his right to appeal those denials, Fleniken pleaded guilty to amended charges of one count each of simple possession of cocaine and methaqualone. He was given a suspended- sentence of five years imprisonment at hard labor on each count and placed on three years supervised probation subject to several probationary conditions.

On appeal, defendant assigns two errors to the trial court’s denial of his two pretrial motions:

(1) The trial court erred by failing to order disclosure of the identity of the individual alleged by law enforcement officers to have been an informant.
(2) The trial court erred by failing to suppress evidence seized on the premises of the defendant as the application for search warrant was defective.

Because we find merit to one of defendant’s arguments in his second assignment of error, that the warrant’s supporting affidavit failed to establish probable cause, we need not decide whether the trial court should have ordered disclosure of the informant’s identity.

The affidavit in question reads:

Affiant informs the court that on or about June 21, 1981, a confidential informant was searched by affiant found to be free of any controlled dangerous substances and taken to 3462 Acadian Thruway where he, being said informant, was kept under surveillance until he entered said residence.
Affiant further informs the court that affiant then kept the above residence under surveillance until said informant exited the residence and turned over to affiant a quantity of green vegetable material which affiant identified as Marijuana.
Affiant further informs the court that Morris Fleniken is well-known to affiant and information has been received from other confidential and reliable informants that Morris Fleniken is a 'dealer in Cocaine and Marijuana.
Affiant further informs the court that a check with Gulf States Utilities shows service at the above residence, 3462 Aca-dian Thruway, to be in the name of Morris Fleniken.

We agree with defendant that this affidavit does not provide sufficient factual details from which a neutral and detached magistrate could determine whether the hearsay information provided by the informants was reliable, or whether any contraband would be found on the premises at the time of the search.

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), abandoned the Aguilar-Spinelli “two-prong test” in favor of a “totality of the circumstances” approach in reviewing search warrant affidavits. Under the new approach,

the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of the crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.

Gates, 462 U.S. at_, 103 S.Ct. at 2332 (citations omitted). However, Gates has not dispensed with the requirement that search warrant affidavits contain some factual indicia of probable cause. A commonsense, nontechnical reading of the affidavit in this case does not reveal a substantial basis for concluding that any narcotics would be found at Fleniken’s residence on the day the search was executed.

First, the affidavit does not state that the confidential informant mentioned in paragraph one observed any other drugs in Fleniken’s home other than the quantity of Marijuana he “purchased” on or about June 21. Nor does the affidavit contain any descriptions of independent corroboration of Fleniken’s alleged drug dealings, such as direct observation or police surveillance of continuous illegal activity, which would indicate a likelihood that narcotics would be present at Fleniken’s home on the 22nd.

An affidavit which recites credible facts showing merely that a small amount of marijuana was taken from a particular place within the previous forty-eight hours does not, without more, establish probable cause to believe that other marijuana was located there at the time the warrant was to be issued. See State v. Cann, 392 So.2d 381 (La.1981) (Dennis, J., concurring); State v. Lewis, 385 So.2d 226 (La.1980); State v. Boneventure, 374 So.2d 1238 (La.1979); cf. State v. Howard, 448 So.2d 713 (La.App. 1st Cir.1984) (direct undercover police observation of additional marijuana within eight hours of the warrant’s execution sufficient to establish probable cause).

Second, the affidavit does not establish the reliability of the informant beyond his involvement in the purchase on June 21. According to State v. Tassin, 343 So.2d 681, 690 (La.1977) (on rehearing),

the reliability and veracity of an anonymous informer is not, in our opinion, pertinently reflected by his willingness to buy illegal drugs under the surveillance of a police officer for whom he works. The ability to traffic in illegal narcotics, under the immediate surveillance of a directing police officer, does not appear to be related to the informer’s uncoerced probable truthfulness in securing outside of that officer’s presence other information for the latter’s use. (footnotes omitted).

In fact, Captain Barnett admitted he had no prior dealings with the informant before the transaction in question.

And finally, the affidavit does not provide any factual basis for crediting the information in paragraph three that Fleniken is a dealer in cocaine and marijuana. The statement that information is supplied by “other confidential and reliable informants” does not by itself establish the reliability of either the information or the informants. Unsubstantiated claims about a person’s reputation for criminal activity are not entitled to any weight in the magistrate’s determination of probable cause. State v. Tassin, 343 So.2d 681; State v. Cann, 392 So.2d 381, 384 (La.1981) (Dennis, J., concurring).

The purpose and philosophy behind our constitutional and statutory requirement that search warrants issue only upon an affidavit reciting facts establishing probable cause have never been better expressed than in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948), where Justice Jackson said more than thirty years ago,

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Accordingly, the motion to suppress should have been granted because the search warrant affidavit does not contain sufficient trustworthy hearsay information, or sufficient independent police corroboration, or an adequate combination of both, to establish probable cause for a search.

For the foregoing reasons, defendant’s conviction and sentence are reversed and the case is remanded for proceedings consistent with the opinions expressed herein.

REVERSED AND REMANDED.

      . LSA-R.S. 40:967 A.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      .LSA-R.S. 40:967 C(2).

      . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), had required search warrant affidavits to establish both the veracity of the informant and the basis of his knowledge to support a finding of probable cause.

      . At the suppression hearing. Captain Barnett refused to disclose .any information surrounding the transaction, ostensibly to protect the informant’s identity, except to say that the informant “procured” less than three ounces of Marijuana within 48 hours of the date the warrant was executed. Standard police procedure, however, indicates that this was a controlled drug purchase.

      . U.S. Const.Amend. IV; LSA-Const.Art. I, sec. 5; LSA-C.Cr.P. art. 162.'


author: COLE, Judge.

text:
    STATE of Louisiana v. Herman HILLS.
    No. KA 84 0006.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Ossie Brown, Dist. Atty. by Jeffrey Holl-ingsworth, Brenda Creswell, Asst. Dist. At-tys., Baton Rouge, for plaintiff-appellee.
    Alex W. Wall, Jr., Baton Rouge, for defendant-appellant.
    Before COVINGTON, C.J., and COLE and SAVOIE, JJ.
   COLE, Judge.

The sole issue in this appeal is sufficiency of the evidence.

D. Herman Hills was charged by bill of information with being a convicted felon in possession of a firearm. He was tried before a judge alone, found guilty and sentenced to imprisonment at hard labor for a period of three years, without benefit of probation, parole or suspension of sentence, and ordered, to pay court costs.

On October 9, 1980, a police officer observed defendant commit two traffic violations. Following pursuit by the officer, defendant stopped his vehicle approximately five blocks from the point at which he was originally observed. After defendant exited his car, the officer approached it and noticed a gun laying in plain view on the floorboard near the accelerator. Defendant was arrested on traffic charges and the gun was seized. The present charge was added when it was discovered that defendant had a 1975 conviction for one of the felonies enumerated in La.R.S. 14:95.1(A).

On appeal defendant argues the trial court erred in denying his motion for a directed verdict of acquittal since there was insufficient evidence to prove either that he was in possession of a firearm as required for conviction under La.R.S. 14:95.1, or that he had intent to be in possession of a firearm. We disagree.

La.Code Crim.P. art. 778 provides that in a trial before a judge alone, the court shall enter a judgment of acquittal if the evidence is insufficient to sustain a conviction. The applicable standard for reviewing sufficiency is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proven beyond a reasonable doubt. See, La.Code Crim.P. art. 821; State v. Walker, 447 So.2d 54 (La.App. 1st Cir.1984).

Actual physical possession of a firearm upon the person of the accused is not required for violation of La.R.S. 14:95.-1(A). Constructive possession of a firearm satisfies the possessory element of this provision. State v. Day, 410 So.2d 741 (La.1982), rehearing denied 1982. Constructive possession is a legal term describing the situation in which a person who is not in actual physical possession of an object can nevertheless be considered in legal possession of the thing if it is subject to his dominion and control. State v. Cann, 319 So.2d 396 (La.1975).

Although the record owner of the car was not established at trial, defendant had sole dominion and control over it and its contents at the time of his arrest. He was the driver and only occupant of the car. Thus, although his dominion and control may have been temporary, it was complete at that time. Further, the arresting officer testified the gun was in such a position next to the accelerator that anyone operating the car could not have failed to notice it. We find this evidence sufficient to prove the possessory element of La.R.S. 14:95.1.

Defendant also argues the evidence is insufficient to prove he had the requisite intent to possess a firearm. Violation of La.R.S. 14:95.1 requires only general criminal intent, which means that the circumstances indicate that the accused “in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2); State v. Godeaux, 378 So.2d 941 (La.1979), rehearing denied 1980. Although the existence of intent is a question of fact, it need not be proven as such, but may be inferred from the circumstances of a transaction. La.R.S. 15:445. We conclude the requisite intent can reasonably be inferred from the facts of the present case, in particular, the position of the gun next to the accelerator of the car driven by and under the exclusive control of defendant.

Thus, considering the evidence in the light most favorable to the prosecution, the state has proven every element of the crime beyond a reasonable doubt. Accordingly, for the above reasons, we affirm defendant’s conviction.

However, we note, ex proprio motu, as error patent on the face of the record the fact that no fine was imposed upon defendant as required by La.R.S. 14:95.1. See, State v. Booth, 347 So.2d 241 (La.1977). The sentence imposed upon defendant is therefore unlawfully lenient. Accordingly, it must be vacated and this case remanded to the trial court for resen-tencing in order that a fine may be imposed. La.Code Crim.P. arts. 882, 916, 920(2); State v. Gatlin, 445 So.2d 47 (La. App. 4th Cir. 1984). Also see, State v. Thomas, 439 So.2d 629 (La.App. 1st Cir. 1983), writ application pending; State v. Jackson, 439 So.2d 622 (La.App. 1st Cir. 1983), writ granted in part, denied in part, 443 So.2d 1123 (La.1984).

For the above reasons, defendant’s conviction is affirmed, but his sentence is vacated and this case is remanded to district court for the imposition of a new sentence in accordance with the opinions expressed herein.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

      . The proper procedural designation for a directed verdict, sought at a criminal bench trial, is motion for acquittal. La.Code Crim.P. art. 778.

      . Rendered February 28, 1984; Numbers 83KA1020 and 83KA1021.

      . The present case is distinguishable from State v. Williams, 439 So.2d 387 (La.1983), since in Williams the statute in question, unlike La.R.S. 14:95.1, provides only for a maximum and not a minimum fine, thus making the imposition of a fine discretionary.


author: CARTER, Judge:

text:
    Jack Ellis ALLOWAY v. Thelma Jane RODRIGUE.
    No. 84 CA 0007.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Jude Thaddeus Fanguy, Houma, for plaintiff and appellant.
    Jules D. Bouqet, Houma, for defendant and appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

On January 20, 1981, judgment was rendered granting Jack Ellis Alloway a divorce from Thelma Jane Rodrigue. Rodrigue was awarded custody of the minor child, Brock Ellis, and $650.00 per month alimony and child support.

On January 17, 1983, Rodrigue filed a motion seeking to hold Alloway in contempt of the support order and, in addition, seeking to make executory past due alimony and child support payments allegedly due under the January, 1981 judgment. Alloway then filed a rule to terminate alimony and/or reduce alimony and child support-to $400.00. He also filed a rule requesting joint custody. Subsequently, Ro-drigue filed a motion to increase child support to $650.00 per month in the event the trial judge terminated or reduced the alimony portion of the original judgment.

At a hearing held on September 9, 1983, Alloway contended that he and his former wife had agreed to a reduction in the support payments, therefore, no alimony or child support was due. The trial judge found that there had been no agreement between the parties to reduce support and therefore granted Rodrigue judgment for past due support in the amount of $11,-573.65. Rodrigue’s motion to increase child support was dismissed. Alloway’s rule to terminate alimony and/or reduce alimony and child support and his rule for joint custody were both denied.

Alloway appeals assigning the following errors:

(1) The trial court erred in finding there had been no agreement between the parties to reduce alimony and child support to $400.00 per month;
(2) The trial court erred in not terminating alimony and/or reducing alimony and child support to $400.00 per month; and
(3) The trial court erred in not granting the parties joint custody.

ASSIGNMENT OF ERROR NO. 1

Alloway contends that he and his ex-wife verbally agreed to reduce his support pay-merits to $400.00 per month, and in exchange, his wife would continue to reside in the former family home and would be given title to a Trans Am automobile. Ro-drigue admitted that she had title to the vehicle and that she had continued to live in the family home. However, she testified that the above actions were not part of any agreement, but rather resulted from the fact that she needed a car to get to work and that she had no other place to live.

In addition, the record reveals that on at least two other occasions the parties were before the court and the support payments were at issue, but the alleged agreement was not brought to the attention of the court at either time.

It is settled that parents may agree to modify the amount of child support fixed by judgment, and such agreement will be given effect if it is in the interest of the child. But, for such an agreement to be effective, the parties must clearly agree to such modification. Moreover, the burden of proof is on the party relying on the agreement to relieve him of his obligation, or to modify his obligation, under the judgment to prove the existence of the agreement. Gomez v. Gomez, 421 So.2d 426 (La.App. 1st Cir.1982). Cf. also McManus v. McManus, 428 So.2d 854 (La. App. 1st Cir.1983).

After considering the testimony of both parties, and Alloway’s failure to urge the alleged agreement at earlier hearings, the trial judge concluded that Alloway had not proven the agreement. Based upon our review of the record, we find no error in the ruling of the trial court. Cf. Mathews v. Mathews, 415 So.2d 234 (La.App. 2nd Cir.1982).

ASSIGNMENT OF ERROR NO. 2

Alloway contends that the trial court erred in failing to terminate alimony and/or reduce alimony and child support to $400.00 per month.

In alimony and child support matters, the litigant requesting an adjustment in a prior award must prove a change in the financial condition of either one of the parties. Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir.1975), writ refused 310 So.2d 844 (La.1975), amended and affirmed, 323 So.2d 513 (La.App. 4th Cir.1975).

This Alloway did not do. He failed to introduce any evidence that he had suffered a change of circumstances. As the trial judge pointed out in his oral reasons for judgment, there was no evidence that he was ill and unable to work or that he had lost his job. In addition, there was no evidence of a change in his former wife’s financial condition. We find no error in the ruling of the trial court on this point.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, Alloway argues that the trial court erred in not making an award of joint custody as provided in LSA-C.C. art. 146.

The trial judge expanded the visitation rights of Alloway, noting that the child, a 5-year old male, should be allowed more time with his father in order to develop and strengthen the relationship between father and son. The father was awarded visitation rights as follows: every other weekend from 6:00 p.m. Friday until 4:00 p.m. Sunday; two weeks during the summer vacation period; alternating Christmas, Easter, and the child’s birthday. Thus, it is clear that the trial judge felt that the best interests of the child were better served by granting a modification of the visitation rights rather than awarding joint custody.

The standard of review in custody matters gives great weight to the determination of the trial judge, and his discretion will not be disturbed on review in the absence of a clear showing of abuse. Lawson v. Lawson, 396 So.2d 387 (La.App. 1st Cir.1981). We find no abuse in the instant case.

For the above reasons, the judgment of the trial court is affirmed in all respects. Costs of appeal are assessed against appellant-Alloway.

AFFIRMED.


author: SHORTESS, Judge.

text:
    STATE of Louisiana v. Roger EALY, Jr.
    No. 84 KA 0070.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Ossie Brown, Dist. Atty. by Joseph Lot-wick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen S. Richey, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Roger Ealy, Jr. (defendant), was charged with simple burglary of an inhabited dwelling on December 18, 1981, in violation of La.R.S. 14:62.2. Initially, defendant pled not guilty. He filed a motion for a preliminary hearing. A hearing was conducted, and the trial court found probable cause to hold defendant as charged. Later, defendant’s motion to suppress physical evidence was denied after a hearing. Several months later, after a full Boykin examination, the trial court allowed defendant to withdraw his not guilty plea and enter a plea of guilty to the charge of simple burglary. Prior to the Boykin hearing, the bill of information was amended to charge defendant with simple burglary. Defendant was sentenced to four years at hard labor with the Department of Corrections with credit for time served. He was also ordered to pay court costs. Defendant now appeals his conviction and sentence, alleging the trial court erred in denying his motion to suppress and in imposing an excessive sentence.

At approximately 2:40 a.m. on December 13, 1981, defendant was stopped while driving his vehicle down Scenic Highway in Baton Rouge. Testimony at the preliminary hearing, which was submitted as evidence at the hearing on the motion to suppress, reveals that Lester J. David, the arresting officer, stopped defendant because he was driving a car with a large television in its open trunk. The officer testified that most people do not move their televisions at that time of the morning. The officer also noted that the television was too nice to be thrown in the trunk, and the trunk lid was not secure or tied down.

After defendant was stopped, a check was run on the automobile, and defendant was issued a traffic citation for switched license plates. The automobile was impounded on this basis and also because defendant was unable to producé' registration papers for the vehicle. The car was stored but not searched at this time.

A few days later, David related this incident to another police officer who was investigating a burglary that occurred the same night. The victim arrived home about 2:30 a.m. and discovered several items, including a television set and cable boxes, had been stolen from his home.

Based on this information, the officers obtained a warrant to search defendant’s automobile. The officers recovered a television, cable boxes and other items that were later identified by the victim as those stolen from his home. Subsequently, an arrest warrant was issued, and defendant was charged with simple burglary of an inhabited dwelling.

Defendant contends that the trial court erred in finding reasonable suspicion for the investigatory stop and in denying the motion to suppress physical evidence seized.

When a defendant withdraws a plea of not guilty and enters a plea of guilty, he waives any non-jurisdictional defects. State v. Crosby, 338 So.2d 584 (La.1976); State v. Mellion, 439 So.2d 586 (La. App. 1st Cir.1983), writ denied, 443 So.2d 1118 (La.1984). A defendant may, however, specifically reserve his right to obtain appellate review of pre-plea errors. State v. McKinney, 406 So.2d 160 (La.1981). In the instant case, neither defendant nor his attorney reserved the right to appellate review of the pre-plea ruling on the motion to suppress. Instead, defendant made an affirmative, voluntary, intelligent, knowing and informed waiver of such right. McKinney, 406 So.2d at 161-162. Therefore, any error in the ruling on the motion to suppress has been waived.

Defendant also contends that the trial court imposed an excessive sentence. Additionally, in brief defendant argues that the trial court did not follow the sentencing guidelines in La.C.Cr.P, art. 894.1.

Wide discretion is given to the trial judge in the imposition of a sentence within the applicable statutory limits. In the absence of manifest abuse, his sentence will not be set aside as excessive. State v. Wroten, 433 So.2d 249 (La.App. 1st Cir.1983), writ denied, 440 So.2d 731 (La.1983). The trial court considered defendant’s juvenile and adult criminal record. He found that “defendant is also noted to have been given the benefit of probation both as an adult and a juvenile without positive results.” Considering the trial court reasons, we do not find the sentence imposed to be an abuse of discretion. Furthermore, the sentence is not grossly disproportionate to the crime, nor is it nothing more than the needless imposition of pain and suffering. State v. Fleming, 428 So.2d 947 (La.App. 1st Cir.1983), writ denied, 434 So.2d 410 (La.1983).

Furthermore, although the trial court did not articulate every aggravating and mitigating circumstance set forth in La.C.Cr.P. art. 894.1, where the sentence imposed is not apparently severe and is in the lower range of the sentencing scale, a remand for compliance with La.C.Cr.P. art. 894.1 is not warranted. State v. Fleming, 428 So.2d at 949-950. Here, the sentence of four years is less than one-half of the maximum twelve years which may be imposed. La.R.S. 14:62. We do not find the sentence imposed to be severe nor is a remand necessary for the trial judge to fully comply with La.C.Cr.P. art. 894.1.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . David issued citations to defendant for switched license plates and impounded the vehi-ele. Detective Schiro arrested defendant for simple burglary.


author: COVINGTON, Judge.

text:
    STATE of Louisiana v. Timothy ASBERRY.
    No. KA 84 0073.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Ossie Brown, Dist. Atty. by Joseph Lot-wick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This appeal was taken by the defendant, Timothy Asberry, for consideration of one assignment of error, whether he received an excessive sentence in violation of La. Const.1974, Art. 1, Sec. 20.

The defendant was charged by grand jury indictment, with the crime of negligent homicide in violation of LSA-R.S. 14:32. To this charge, Asberry pled guilty. The trial judge sentenced him to serve three years at hard labor with the Louisiana Department of Corrections.

On the evening of January 17, 1983, Timothy Asberry, twenty-two years of age, was a guest in the home of his sister. The defendant, his sister and defendant’s twelve year old nephew were playing cards when they got into an argument about school grades. During the argument, As-berry obtained a .410 gauge shotgun, pointed the weapon at the youth, ordered him to be quiet, and shot the victim in the chest, killing him instantly. Asberry said that he did not know the gun was loaded. The defendant turned himself in; and, subsequently, after Boykinzation, pled guilty to the offense.

The maximum sentence which can be imposed for a violation of LSA-R.S. 14:32 is imprisonment at hard labor for five years and a fine of five thousand dollars. As stated, the penalty actually imposed was three years, a term somewhat shorter than the maximum assessable penalty. The defendant was also taxed for costs in the amount of $82.00 and he was credited with time served.

The trial judge has wide discretion, though not unbridled, in the imposition of a sentence within statutory limits, State v. Sepulvado, 367 So.2d 762 (La.1979); and given compliance with the sentencing criteria of LSA-C.Cr.P. art. 894.1, the sentence will not be set aside in the absence of manifest abuse of discretion. State v. Washington, 414 So.2d 313 (La.1982). The penalty imposed must not be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

We do not consider the penalty imposed in the instant case so disproportionate to the crime committed as to shock our sense of justice. The defendant, while involved in a minor family argument with an adolescent, aimed a shotgun at the youth and pulled the trigger, causing the death of the victim.

A review of the record in the case reveals that the trial judge carefully particularized the sentence, considering each and every mitigating and aggravating factor as set out in LSA-C.Cr.P. art. 894.1 with respect to Asberry. The judge noted that he was twenty-two years old and unmarried; that he had a ninth grade education and worked as a bus boy in a restaurant. The judge further noted that he pled guilty to the crime, had not been previously convicted of any crime, voluntarily surrendered to the police and was remorseful for the crime.

The defendant alleges further that the trial judge did not adequately consider the sentencing guidelines of Article 894.1. The record reflects that the trial judge considered a pre-sentence report, the defendant’s personal history, that the defendant was a first offender and that he showed remorse for his crime. The trial judge felt that the defendant had shown “grossly antisocial behavior” and that he was in need of correctional treatment or a custodial environment that could be best provided by institutionalization. In summation, the record shows that the trial judge’s articulation of reasons for sentence are more than adequate to meet the statutory criteria. See State v. Calloway, 432 So.2d 1064 (La.App. 3rd Cir.1983).

The defendant has not made a strong case for probation or a lesser sentence. The record shows a need to impose a sentence of incarceration in this case in order to prevent further depreciation of respect for law. The trial judge’s statement of his sentencing reasons was sufficient justification of his choice of penalty. The trial judge acted within the ambit of his constitutional and statutory authority in imposing the sentence.

This assignment of error is without merit.

We affirm the sentence.

AFFIRMED.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Melvin C. STOKES, Jr.
    No. 84 KA 0087.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Leon A. Picou, Jr., Dist. Atty., St. Fran-cisville, for plaintiff.
    Clayton M. Perkins, Jr.,-St. Francisville, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, Melvin C. Stokes, Jr. was charged by indictment with aggravated burglary occurring on May 15, 1979, in violation of LSA-R.S. 14:60(3). He pleaded not guilty, and after a jury trial was found guilty as charged. He was sentenced to twenty years at hard labor, said sentence to run consecutively with any other sentence defendant was serving. Defendant appeals his conviction, alleging one assignment of error, i.e., that there was insufficient evidence to support the guilty verdict.

About midnight between May 14th and May 15th, 1979, a black man entered the home of the victim, a woman who lived alone in a rural area outside Clinton, Louisiana. The victim was awakened from her sleep by a noise that sounded like the screen on her bedroom window being cut. A man outside tore off the window screen and climbed into the room. Upon entering the man hit the victim in the face with his fist several times and burst her lip. He then ransacked the victim’s purse, taking $10.00 and her Mastercharge credit card. When she turned on a flashlight, the man took it away and hit her on the head with the flashlight, causing a laceration of the hairline. The man then raped her.

After the rape, the intruder wandered into the kitchen and had a coke. He then pulled the telephone from the wall. Before leaving, the intruder apologized for what he had done but told the victim not to call the police or he would come back and “finish her off.” The woman was afraid to leave while it was dark, so she waited until daybreak to go to a neighbor’s house to call the police.

Since there were no lights on inside the house, the victim was not able to identify the intruder. The flashlight she had was taken away from her before she could direct the light on the intruder. She only knew that he was a black man. Thus, the victim could not identify defendant as the intruder.

East Feliciana Parish Sheriff deputies and an investigator with the district attorney’s office testified that defendant, after being advised several times of his rights and signing a waiver of rights form, gave a statement in which he confessed to the crime. Defendant gave a detailed confession wherein he stated he was going to a friend’s home when he decided to break into the victim’s home to steal something. This statement was handwritten by one of the deputies, read back to defendant and read by defendant himself before he signed each page. Although the statement was given in the middle of the night, the deputies testified defendant was alert and understood that he was waiving his rights.

At trial, defendant contended that his confession was involuntary and given only after he was threatened by one of the deputies conducting the interrogation. None of the other witnesses corroborated this testimony. Defendant also testified that on that night he did approach the victim’s home with the intent to break in and steal something of value. He stated at trial, that he did not enter the home, but rather was at the back screen door when he heard profanity and noises inside the house. This scared him, and he immediately left the area.

Also, defendant’s palm print was found on the inside surface of the back screen door of the victim’s house.

ASSIGNMENT OF ERROR NO. 1:

In defendant’s sole assignment of error, he urges that there is insufficient evidence to support the conviction.

Although this issue was not raised by a motion for post verdict judgment of acquittal, LSA-C.Cr.P. art. 821, we consider the sufficiency of evidence when the matter is simply raised by a formal assignment of error. State v. Edwards, 400 So.2d 1370 (La.1981); State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983). If the evidence is insufficient to support the verdict, the conviction will be reversed.

Defendant argues that the only relevant link between himself and the crime is his confession. At trial, the judge found that the confession was voluntary and allowed it to be introduced into evidence. Defendant did not assign as error this ruling of the trial court, nor do we address that issue.

Apparently, the jury considered defendant’s contention that he was threatened in determining what weight to give the confession. It appears the jury chose to rely on the confession and other evidence. Where there is conflicting testimony as to a factual matter, the question of credibility of witnesses is within the sound discretion of the trier of fact. State v. Jacobs, 435 So.2d 1014 (La.App. 1st Cir.1983).

It is well settled that an accused may not be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone, i.e., without proof of the corpus delicti. State v. Willie, 410 So.2d 1019 (La.1982); State v. Jackson, 444 So.2d 351 (La.App. 1st Cir.1983). In addition, proof that defendant was a person engaged in the unlawful conduct is essential for a conviction. State v. Freetime, 334 So.2d 207 (La.1976); State v. Jackson, supra.

The state presented uncontroverted evidence that a crime, aggravated burglary, had been committed. The victim testified that a man had entered her house through her bedroom window while she was at home. Once inside the man beat and raped the victim. He also stole money from her. Defendant’s statement connected him with the aggravated burglary by its detailed and accurate account of the offense. Although the victim could not identify defendant as the intruder, defendant's palm prints were found on her back screen door. In addition, the victim’s stolen Mast-ercharge credit card was found in a wooden area near where defendant was staying with friends. Furthermore, defendant, who claims he heard profanity and noises inside the home as he began to enter it, obviously wanted the jury to believe he was outside when the attack on the victim occurred. The victim, however, stated that there was no loud noise nor profanity during the incident.

We conclude that when the evidence is considered in the light most favorable to the state, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Therefore, this assignment of error lacks merit.

The conviction and sentence are affirmed.

AFFIRMED.

      . Defendant was also charged with and convicted of aggravated rape of the victim that occurred in this incident. That conviction was affirmed by this court in State v. Stokes, 441 So.2d 1308 (La.App. 1st Cir.1983).


author: PONDER, Judge.

text:
    George McCOY v. DEPARTMENT OF PUBLIC SAFETY OFFICE OF STATE POLICE.
    No. CM 84 0246.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Jack Quarels, Jr., New Orleans, for plaintiff-appellant.
    James C. Dixon, Baton Rouge, for defendant-appellee.
    Robert R. Boland, Jr., Baton Rouge, for Civil Service-appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

The Director of the Department of State Civil Service, relying upon our decision in Guillory v. Department of Transportation and Development, 439 So.2d 657 (La. App. 1st Cir.1983), filed a Motion to Dismiss an Unlodged Appeal, since the opinion of the Referee was filed on December 23, 1983, since no application for review by the State Civil Service Commission was filed by either party and since the application for appeal to this court was received by the Department of Civil Service on January 23, 1984.

However, the Supreme Court overruled Guillory, supra, and held that La.C.C.P. art. 5059 was applicable and that if the thirty days allowed for appeal of a Civil Service ruling expired on a holiday or half-holiday, the applicant has until the end of the next business day to file his application.

The motion to dismiss is therefore denied.

MOTION DENIED.


text:
    Leonard EALY v. D.H.H.R., Charity Hospital of Louisiana at New Orleans.
    No. CM 84 0562.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Dwight W. Norton, New Orleans, for plaintiff-appellant.
    Jane C. Scheuermann, New Orleans, for defendant-appellee.
    Robert R. Boland, Jr., Baton Rouge, for Civil Service-appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

The Director of the Department of State Civil Service, relying upon our decision in Guillory v. Department of Transportation and Development, 439 So.2d 657 (La. App. 1st Cir.1983), filed a Motion to Dismiss an Unlodged Appeal, since the opinion of the Referee was filed on October 14, 1983, since no application for review by the State Civil Service Commission was filed by either party and since the application for appeal to this court was received by the Department of Civil Service on November 14, 1983.

However, the Supreme Court overruled Guillory, supra, and held that La.C.C.P. art. 5059 was applicable and that if the thirty days allowed for appeal of a Civil Service ruling expired on a holiday or half-holiday, the applicant has until the end of the next business day to file his application.

The motion to dismiss is therefore denied.

MOTION DENIED.


author: BYRNES, Judge.

text:
    Henry TALLEY v. Ross MAGGIO, Warden.
    No. K 2416.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 29, 1984.

      Henry Talley, Sr., in pro. per.
    Harry F. Connick, Dist. Atty., New Orleans, for Ross Maggio.
    Before BYRNES, CIACCIO and SAMUEL, JJ.
   BYRNES, Judge.

This is an application for supervisory and remedial writs based on the trial court’s denial of relator’s application for post conviction relief. On June 10, 1981 relator was convicted of possession of pentazocine (talwin), a violation of R.S. 40:967 and was sentenced as a multiple offender to 10 years at hard labor. He appealed his conviction and sentence to this court (docket # KA 1194). On February 9, 1984 a panel composed of J.J. Byrnes, Augustine and Ward affirmed Talley’s conviction and sentence. Judge Ward dissented regarding the excessiveness of Talley’s sentence. Talley did not timely take writs to the Supreme Court or seek re-hearing. This judgment is therefore final. Conversations with Criminal District Court have confirmed that Talley filed a petition for post conviction relief which was denied by Judge Braniff on May 9, 1984. Relator’s application for post conviction relief is therefore properly before this court. See C.Cr.P. Art. 924 et seq.

ISSUES

Talley’s first claim is that his conviction was based on what he contends was perjured testimony by the arresting officer. Talley argues that the officer testified that he made incriminating statements while his stomach was being pumped, a feat which Talley contends is physically impossible and therefore shows that the officers testimony was perjured.

This argument lacks merit for several reasons. First, there was no contemporaneous objection to the testimony. Additionally, the inconsistency in the officer’s testimony was not assigned as error in relator’s appeal before this court. Under these circumstances the objection was waived. C.Cr.P. Art. 841 and 920. Even if these objections were not waived, Talley’s argument assails the credibility of the officer’s testimony, an issue resolved against him by the jury at trial. This claim has no merit.

Talley next objects to the arresting officer’s testimony as to what was visible on x-rays of his stomach and other conclusions which Talley contends should only have been made by a medical expert.

No objection to this testimony was made at trial and no assignment of error urged on appeal. Moreover, the statements which the officer made were elicited from him by defense counsel (see transcript page ' 29-32 in No. KA 1194). This argument is without merit.

Talley next complains that the trial court improperly refused a hearing on a motion to suppress evidence and also complains that statements allegedly made by him to the police officer should not have been admitted into evidence. The minutes reveal that the trial court refused to hold a hearing on the motion to suppress because the motion did not state sufficient facts to justify a hearing under C.Cr.P. Art. 703(E). No new motion was filed by the defense and the judge’s ruling was apparently not objected to at trial or assigned as error on appeal. Additionally, a review of the record indicates that the evidence was constitutionally obtained. There appears to be no merit in this part of Talley’s claim.

Talley further complains that the arresting officer was allowed to relate several incriminating statements made by him shortly after his arrest. While Talley argues that admissions against interest violate his 5th amendment right against self-incrimination, his argument is aimed at the hearsay nature of the statements. As with all of his other complaints, no objection was made to the admission of these statements at trial, nor was this assigned as error on appeal. Looking beyond these procedural problems, the statements are admissions not confessions. (See R.S. 15:449) They do not constitute an admission of guilt but instead offer an explanation for relator’s conduct. (See transcript in No. KA 1194 at Page 33, 34, 41). Statements which relate admissions made by a defendant are an exception to the hearsay rule and are therefore admissible in evidence. State v. Lewis 416 So.2d 921 (La.1982).

Finally Talley complains that his appellate counsel was ineffective because he failed to inform him that his case was affirmed on appeal. Talley argues that this caused him to miss the opportunity to apply for re-hearing or writs to the Supreme Court. This argument is also without merit.

Although there is a constitutional right to judicial review of a conviction in Louisiana (See Art. 1 Sec. 19 Const.1974), relator has already received the benefit of that right by his appeal to this court. There is no constitutional right to further review by way of rehearing or writs. In the absence of such a constitutional right, counsel’s alleged failure to inform relator of when to apply for such review is not a deprivation of the constitutional right to effective assistance of counsel.

Underlying this entire application is relator’s failure to adequately explain why the errors raised herein were not raised earlier. His uniform excuse is ignorance of the law. However, the record reveals that he was not only represented by counsel throughout the trial but was himself present and could have pointed out at that time the inconsistencies and errors of which he now complains.

There is no error in the ruling of the trial court.

WRIT DENIED.


author: SULLIVAN, Justice,

text:
    Fed HARRIS, et al. v. S. Charles KEMP.
    No. 54256.
    Supreme Court of Mississippi.
    June 6, 1984.
    Rehearing Denied July 11, 1984.

      Luther Dove, Chill, Chill & Dove, Jackson, for appellants.
    Leonard C. Martin, Sam E. Scott, John B. MacNeill, Heidelberg, Woodliff & Franks, Jackson, for appellee.
    Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

This is an appeal from the Chancery Court of Copiah County which dismissed a suit of appellants to cancel a special warranty deed, for an accounting, and for other relief. Also in the action, the chancellor reformed the deed in question from Fed Harris and wife to appellee, cancelled the claims of appellants upon appellee’s land as clouds upon his title, and granted appellee a money decree of $750.00 on a promissory note, plus $150 attorney’s fees and $175 interest on the note; also, appellee was granted a judgment of $5,000 for rent. For the reasons noted below, we reverse.

Fed Harris and wife had lived on a 264 acre farm in Copiah County for many years and had known and had financial dealings with Kemp and his father for forty or fifty years. Kemp is an automobile dealer in Jackson, Mississippi.

Harris had fallen upon hard economic times. He had judgment creditors to the tune of some $20,000. He owed a first mortgage to the Federal Land Bank for $35,000 and a second mortgage to Wesson Milling Company for $44,000. Also by 1978, he had a mortgage to Kemp for $18,-600.

In late 1978, Wesson began foreclosure, and, unable to raise money to pay Wesson, Harris sought out Kemp for help. Kemp, through Sam Scott, his lawyer, hired James Nobles to represent Harris in the foreclosure proceedings, paying Nobles’ $500 retainer fee for Harris. Kemp then had Harris and wife sign an exclusive option in favor of Kemp to purchase the farm for $92,000 less what was owed to Kemp. This option was never recorded. Kemp then had, on January 26, 1979, the Harrises execute a special warranty deed to him for $100. This was also not recorded. Harris was told that Kemp needed this deed to borrow the money to pay off Wesson. No money ever changed hands on this deed.

Meanwhile, Nobles had filed to enjoin Wesson’s foreclosure to which Wesson had consented. Wesson then filed for a judicial foreclosure. In this action, Wesson alleged that Harris owed it a total of $160,000— $44,000 on the deed of trust and the remainder from business ventures between it and Harris. On April 4, 1979, a decree was entered by consent in that case, providing that Harris pay over to Wesson $50,000. He was given thirty days within which to comply.

During the pendency of the Wesson Milling Company suit, a meeting was had between the Harrises, Kemp, and their attorneys. At that time, Kemp agreed to put up the $50,000 to pay off Wesson. However he was not willing to make any more loans on the property. Instead the parties spoke of some type conveyance. Eventually on April 4, 1979, an agreement was reached and the above mentioned decree was entered. After agreement was reached, however, Kemp left for Europe for several weeks.

Then, on May 4, 1979, the last day before expiration of the thirty-day period provided for in the decree, the parties and their attorneys met at the Copiah County court house to consummate their prior dealings. There, after checking to see the amount owed Kemp by Harris for previous loans, the amount of the Federal Land Bank Loan, and the amount owed to the judgment creditors, a special warranty deed to the property was executed by Harris in favor of Kemp and was recorded. Additionally on May 4, an assignment of the $50,000 Harris owed Wesson was executed in favor of Kemp in exchange for Kemp paying Wesson the $50,000. Thus by May 4,1979, Kemp held a special warranty deed to the 264 acres as well as an assignment of the $50,000 deed of trust on the property-

During the negotiations and at the May 4th signing, a repurchase agreement was discussed. On request of Harris, Nobles drew up a repurchase agreement calling for a two-year redemption period. The purported agreement would have had Harris repaying Kemp the amounts owed plus 10% interest and an inflation factor to be computed later. This written agreement was presented to Kemp at the May 4th meeting. However, Kemp declined to sign it, saying that Harris would just have to trust him. The testimony as to what was actually agreed upon is conflicting — Harris claiming a two-year redemption period and Kemp claiming a one-year redemption period.

After the May 4th transaction, Fed and Kathryn Harris continued to live on the property, at least until Kathryn’s death on September 12, 1979, and Fed’s remarriage several months later. However, Fed continues to go to the property daily to maintain it. All witnesses, including Kemp, testified that Kemp allowed Harris to remain on the property rent free, provided he (Harris) maintained the property. During this time, Kemp paid the taxes on the property and assumed the Federal Land Bank deed of trust.

On several occasions after the May 4th, 1979, transaction, Harris approached Kemp concerning repurchase of the property. However, in November or December, 1980, a representative from Getty Oil Company approached Kemp, stating that the Company was seriously considering drilling for oil on the property. Consequently, when, in December, 1980, Harris approached Kemp, Kemp did not quote a repurchase price, saying, according to Harris’s testimony, that he (Kemp) wanted to wait and see the outcome of the Getty exploration. Finally, in February, 1981, Kemp stated that he would allow Harris to repurchase for $177,-000, but that he (Kemp) would reserve the mineral rights.

Harris testified that though he was able to repay the amount he owed Kemp, $177,-000 without mineral rights exceeded that amount. However, apparently because he thought $177,000 was more than he owed, Harris never tendered any money. Incensed over Kemp’s price, Harris filed suit on May 26, 1981. Thereafter, Kemp posted the property and wrote a letter to Harris informing him that he was no longer allowed to use the land. In June, 1981, Kemp filed criminal trespass charges against Harris.

The case proceeded to trial on April 29, 1982, wherein a final judgment was entered in favor of Kemp. Subsequently Harris perfected this appeal, arguing, among other things, that the chancellor erred in failing to treat the May 4, 1979, special warranty deed as a mortgage.

Mississippi has long adhered to the rule that a deed absolute on its face may be found valid and effectual as a mortgage, if it were intended by the parties “to operate as a security for the repayment of money.” Vasser v. Vasser, 23 Miss. (1 Cush.) 378, 380 (1852). See also, Prewett v. Dobbs, 21 Miss. (13 Sm. & M.) 431 (1850). In order to show that a deed, absolute on its face, was intended as a mortgage, however the evidence must be clear and convincing. Delaney v. Davis, 229 Miss. 475, 480, 91 So.2d 286, 288 (1956). See also, Jordan v. Jordan, 145 Miss. 779, 111 So. 102 (1927).

In determining whether this burden was met and whether a transaction was intended as a mortgage rather than a deed, there is no conclusive test. Instead, each case must be decided upon its own facts and all the surrounding circumstances. Lampley v. Pertuit, 199 So.2d 452, 455 (Miss.1967); Emmons v. Emmons, 217 Miss. 594, 599, 64 So.2d 753, 755 (1953). Among the factors this Court has previously noted as being pertinent in such a determination are: the relation of the parties, the financial condition of the grantor, possession by the grantor, the value of the property, and the conduct of the parties. Emmons v. Emmons, supra, at 599, 64 So.2d at 755. Also noted, by other authorities, as pertinent are the payment of taxes and subsequent dealings of the parties. 59 C.J.S. Mortgages § 35, p. 70. And finally, it is said that a mortgage stands as security for a debt which a mortgagor remains under a legal obligation to pay. Thus when a debt has been extinguished by agreement of the parties, by the execution of a conveyance, „ and the grantor has the privilege of refunding and to a reconveyance, it is a conditional sale. However, u'nder a mortgage, a debtor-creditor relation continues. Conner v. Conner, 238 Miss. 471, 119 So.2d 240 (1960); Hoopes v. Bailey, 28 Miss. (6 Cush.) 328 (1854).

Moreover, where, as here, the grantor retains possession of the property, parol evidence may be introduced to prove that the deed, absolute on its face, was intended as a mortgage. Mississippi Code Annotated § 89-1-47 (1972); Bethea v. Mullins, 226 Miss. 795, 85 So.2d 452 (1956).

Examining all the surrounding circumstances and applying the elements enumerated in Emmons, the following result is reached. The relation of the parties here showed a discrepancy as in Emmons: Harris had only a high school education and Kemp had a Master’s Degree in Economics. The financial condition of the grantor (Harris) was extremely poor and he was attempting, with Kemp’s help, to stave off foreclosure. Also Harris, the grantor, remained in possession and control of the property after the execution of the deed. The value of the property, however, was only slightly higher than the total amount Kemp had invested, though as noted below Harris remained obligated to repay these amounts. And finally, the conduct of the parties showed that Kemp acted to help Harris save his property and took a special warranty deed and assignment of the Wesson Milling Company deed of trust only to protect his interest by placing himself above the judgment creditors. Moreover, and perhaps more importantly, the evidence here showed that Kemp merely took an assignment of the $50,000 Wesson Milling Company deed of trust. The testimony indicated that this assignment did not cut off the indebtedness and that it has not been cancelled. Indeed, on August 21, 1979, Kemp renewed the Wesson Milling Company note. Also the evidence showed $18,600 in promissory notes executed by Harris in favor of Kemp and still outstanding. Thus all the evidence, including the testimony of Kemp himself, indicates that a debtor-creditor relationship continues to exist and that the existing debt by Harris was not extinguished by the giving of the special warranty deed.

As noted in Emmons, what Kemp is attempting to do by this suit is the very thing he admits he attempted to prevent, viz. the taking away of Harris’s property. This result was enhanced by the chancellor’s ruling which effectively vested title to Harris’s property in Kemp while at the same time obligating Harris to repay Kemp for his (Harris’s) prior debt. Thus the chancellor’s ruling would have required a finding that Harris simply gave away his property for nothing. We, therefore, hold that the chancellor erred in failing to find that the May 4,1979, special warranty deed was intended by the parties to be a mortgage.

Having found that the instrument involved here was a mortgage, the method of bringing about an equitable result is collateral and incidental. Where, as here, a deed absolute on its face is held to be a debt-securing mortgage, there is an express or implied promise to do whatever is necessary to reinvest title in the grantor upon payment of the debt. Emmons v. Emmons, supra. As we noted in Em-mons, a court of equity in such cases has the authority to set aside the deed upon payment to the grantee of the amount of the debt with interest. Equity regards as done that which ought to be done. Therefore, we reverse and remand to the chancery court for an accounting and to cancel the May 4th, 1979, special warranty deed upon payment, within a reasonable time, by Harris to Kemp of the debt owed.

Having thus found the instrument in question to be a mortgage rather than a deed, we also reverse and render the chancellor’s finding that Harris is obligated to pay $5,000 in rent. However, we affirm as to money decree of $750.00 on promissory note — which note was executed after the special warranty deed and which does not appear connected to the land in question— along with $150.00 attorney’s fees and $175.00 interest on said note.

REVERSED AND REMANDED FOR AN ACCOUNTING AND FOR CANCELLATION OF THE SPECIAL WARRANTY DEED UPON REPAYMENT, WITHIN A REASONABLE TIME, OF THE DEBT OWED;

REVERSED AND RENDERED AS TO PAYMENT OF RENTS.

AFFIRMED AS TO MONEY DECREE OF $750.00 ON PROMISSORY NOTE, $150.00 ATTORNEY’S FEES, AND $175.00 INTEREST.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

ROBERTSON, J., not participating.


author: BEATTY, Justice.

text:
    I. Harry LYON and Michael D. Blalock v. ALABAMA STATE BAR.
    82-574.
    Supreme Court of Alabama.
    May 11, 1984.
    I. Harry Lyon, pro se.
    Michael D. Blalock, pro se.
    William H. Morrow, Jr., Gen. Counsel, Montgomery, for Alabama State Bar.
   BEATTY, Justice.

Two attorneys, I. Harry Lyon and Michael D. Blalock, appealed from the order of the Alabama State Bar Disciplinary Board (Board) that they each receive a private reprimand for failure to comply with specific disciplinary rules regarding advertising. We affirm in part and reverse and remand in part.

On February 19, 1981, Lyon and Blalock published an advertisement in the Shelby County Reporter, a weekly newspaper of general circulation in the municipality and county in which the office of the attorneys was located.

On April 6, 1981, the general counsel of the Alabama State Bar (Bar), William H. Morrow, Jr., filed a complaint in the office of the secretary of the Bar alleging that Lyon and Blalock had violated several disciplinary rules of the Code of Professional Responsibility of the Bar by placing the February 19, 1981, advertisement. That advertisement read as follows:

"LEGAL SERVICES
"PROVIDED BY
"HARRY LYON AND MIKE BLALOCK “ATTORNEYS AT LAW
“SUITE 207-209 JOHNSON BUILDING "HIGHWAY 31 SOUTH IN PELHAM
"UNCONTESTED DIVORCES. $145.00
“W/Agreement. $250.00
"PERSONAL BANKRUPTCY. $350.00
“SIMPLE WILLS. $ 75.00 '
“Video Taped Will. $250.00
“PHONE 987-7007 FOR APPOINTMENT
“(ABOVE FEES DO NOT INCLUDE COURT COSTS)’’

In Charge I, the Bar alleged that “[b]y advertising their services for a fee to prepare a ‘Video Taped Will’ the attorneys ... participated in the use of a form of public communication which contained misleading or deceptive statements since the words ‘Video Taped Will’ have no clearly defined meaning to the members of the legal profession or to the public.” Therefore, the Bar charged the attorneys with failure to comply with DR 2-101(A), which provides:

“A lawyer shall not prepare, cause to be prepared, use, or participate in the use of any form of public communication that contains false, fraudulent, misleading, deceptive or professionally self-laudatory statements.”

The Bar alleged in Charge II that “[b]y advertising for a specific fee the preparation of a ‘Video Taped Will’ the attorneys included in the advertisement services other than ‘routine legal services’ as defined in DR 2-102(A)(7)(b).” DR 2-102(A)(7)(b), pri- or to its amendment effective January 26, 1983, provided:

“The advertisement may contain a description of routine legal services performed by the lawyer. ‘Routine legal services’ are limited to uncontested divorces, uncontested adoptions, simple personal bankruptcies, changes of name, and the like. If the advertisement states the fees charged for such services, it shall only state the maximum lawyer’s fee to be charged therefor and a separate reasonably accurate estimate of the costs that will be incurred in addition to the lawyer’s fees.”

Accordingly, the Bar charged the attorneys with failure to comply with that disciplinary rule.

Charge III also dealt with an alleged violation of DR 2-102(A)(7)(b). The Bar alleged that “[t]he advertisement ... did not contain a separate reasonably accurate estimate of the costs that [would] be incurred in addition to the lawyer’s fees.”

Charge IV concerned an alleged violation of DR 2-102(A)(7)(e), but that charge was subsequently dismissed at the Board’s hearing because Lyon and Blalock had in fact complied with that rule.

In Charge V, the Bar alleged that “[t]he attorneys [had] failed to include in the advertisement ... the disclaimer required,” and thus charged the attorneys with violating DR 2 — 102(A)(7)(f), which, until the January 26, 1983, amendment, provided:

“No advertisement shall be published unless it contains, in legible print, the following language:
“ ‘No representation is made about the quality of legal services to be performed or the expertise of the lawyer performing such services.’ ”

No substantive change was made by the January 26, 1983, amendment insofar as this charge is concerned.

In their answer, Lyon and Blalock admitted placing the advertisement containing a quoted price for a “Video Taped Will” on February 19, 1981. They denied the remaining allegations and raised the following affirmative defenses:

“A. That DR 2-102(A)(7)(c) states ‘No representation shall be made in any [...] advertisement about the quality of legal services to be performed or the expertise of any lawyer or firm of lawyers to perform such services.’
“That respondents in their ad did not make any representation as to quality of services or expertise.
“That respondents contend that having complied with DR 2-102(A)(7)(c), that DR 2-102(A)(7)(f) does not apply.
“B. That DR 2-102(A)(7)[ (f) ] (the disclaimer/exculpatory clause) is a clear and flagrant contradiction to DR 6-102 Limiting Liability to Client which states ‘A lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice’ therefore to include the disclaimer/exculpatory clause as recited in DR 2-102(A)(7)(f) is to violate DR 6-102.
“That Respondents contend that Petitioner’s Complaint is without merit in that Respondents have complied with and rely on the landmark decision of the United States Supreme Court in the case of Bates v. Arizona State Bar Association, 43 [433] U.S. 350 [97 S.Ct. 2691, 53 L.Ed.2d 810] (1977), and the First Amendment to the United States Constitution.
“That if Respondents are found to have violated any disciplinary rule related to advertising as set forth in Petitioner’s Complaint, that said rule is unreasonable and therefore void ab initio (See Bates v. Arizona, 43 [433] U.S. 350 [97 S.Ct. 2691, 53 L.Ed.2d 810] (1977).”

The Board conducted a hearing in Jefferson County on February 18, 1983. At the hearing, the Bar called upon Lyon and Blal-ock as adverse witnesses under Rule 43(b), A.R.Civ.P. The Bar offered into evidence a copy of the February 19, 1981, Shelby County Reporter containing the advertisement of Lyon and Blalock.

The Bar and members of the Board questioned Lyon and Blalock about the charges against them, and the two attorneys presented their defenses to the Board. After the hearing, the Board found Lyon and Blalock guilty of Charges I, II, III, and V, and fixed the discipline as a private reprimand. Lyon and Blalock appealed to this Court pursuant to Rule 8(d) of the Rules of Disciplinary Enforcement.

The issues before this Court are whether sufficient evidence was presented to support the Board’s finding that Lyon and Blalock were guilty of the charges brought against them under DR 2-101(A), DR 2-102(A)(7)(b), and DR 2-102(A)(7)(f), and whether those rules violated the constitutional guarantee of commercial free speech as applied to the appellants’ advertisement.

The United States Supreme Court held for the first time in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), that First Amendment protection extended to “truthful” advertising of “routine” legal services by attorneys, and that, accordingly, attorney advertising could not be subjected to blanket suppression. The Court emphasized, however, that false, deceptive, or misleading advertising remained subject to restraint.

Subsequently, the Court discussed Bates and the standard by which the state regulation of attorney advertising would be judged in In The Matter Of R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982):

“Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proven that in fact such advertising is subject to abuse, the states may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the states may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if , the information also may be presented in a way that is not deceptive. Thus, the Court in Bates suggested that the remedy in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation. 433 U.S. at 375, 97 S.Ct. at 2704. Although the potential for deception and confusion is particularly strong in the context of advertising professional services, restrictions upon such advertising may be rib broader than reasonably necessary to prevent the deception.
“Even when a communication is not misleading, the state retains some authority to regulate. But the state must assert a substantial interest and the interference with speech must be in proportion to the interest served. Central Hudson Gas Co. v. Public Service Comm’n, 447 U.S. [557] at 563-564, 100 S.Ct. [2343] at 2350 [65 L.Ed.2d 341 (1980)]. Restrictions must be narrowly drawn, and the state lawfully may regulate only to the extent regulation furthers the state's substantial inter-est_” (Footnote omitted.)

I

In determining the issue of sufficiency of the evidence to support the Board’s finding that Lyon and Blalock violated DR 2-101(A) (Charge I), we must decide initially who bears the burden of proving whether or not an advertisement is “misleading.” This question is important in the present case because Lyon and Blalock assert that the Bar produced no evidence at the disciplinary hearing to show that the words “Video Taped Will” were misleading. The Bar responds that the attorneys had the initial burden “to show that their specific advertisement [was] entitled to First Amendment protection,” and quotes the following passage from Bates in support of its position:

“In the First Amendment context, the Court has permitted attacks on overly broad statutes without requiring that the person making the attack demonstrate that in fact his specific conduct was protected. ...
“... Since overbreadth has been described by this Court as ‘strong medicine,’ which ‘has been employed ... sparingly and only as a last resort,’ Broadrick v. Oklahoma, 413 U.S. [601] at 613, 93 S.Ct. [2908] at 2916 [37 L.Ed.2d 830], we decline to apply it to professional advertising, a context where it is not necessary to further its intended objective _” Bates, 433 U.S. at 380-381, 97 S.Ct. at 2707.

The Bar contends that this quotation from Bates indicates that the Court intended for a person attacking a regulation on First Amendment grounds to first show that the speech sought to be regulated was protected. If that was the Court’s intention, then, in the commercial speech context, since misleading advertising may be prohibited, In The Matter Of R.M.J., 455 U.S. at 203, 102 S.Ct. at 937, that person would have to prove that the speech was not misleading. The Bar argues that the attorneys accused of violating DR 2-101(A) had to prove that the advertisement was not misleading, thus relieving the Bar from proving that it was misleading.

The Bates court determined that the advertisement at issue in that ease was not misleading and therefore was entitled to First Amendment protection. In making its determination, the Court responded to the Bar’s arguments that the advertisement was misleading and stated: “We conclude that it has not been demonstrated that the advertisement at issue could be suppressed.” 433 U.S. at 382, 97 S.Ct. at 2708. The Court did not state who failed to demonstrate that the advertising could be suppressed, but it seems logical to presume that it was the Bar, since the Court alluded to the Bar’s arguments and because the attorneys would not be trying to demonstrate that their advertisement could be suppressed.

Similarly, in R.M.J., supra, the Court stated that the appellant’s listing of areas of practice had “not been shown to be misleading,” without indicating by whom. Again, the inference is that it was the Bar which did not show that the advertisement was misleading.

Therefore, reading the Court’s analyses in Bates and R.M.J. in light of the language from Bates quoted by the Bar, it is unclear whether the Supreme Court intended to place the burden of proof upon an attorney in a disciplinary proceeding brought by a state bar. In the absence of a clear mandate in that regard, we are hesitant to depart from the traditional rule. The Bar has the burden in a disciplinary proceeding to show by the evidence that the lawyer charged has violated the rules. E.g., Dodd v. Board of Commissioners of the Alabama State Bar, 365 So.2d 975, 977 (Ala.1978).

Therefore, with regard to Charge I, the burden was on the Bar to prove that Lyon and Blalock’s inclusion of the words “Video Taped Will . $250.00” caused the advertisement to be misleading. In its brief, the Bar states:

“The following questions propounded to the Respondents by members of the Disciplinary Board are significant, since it appears that to the members of the Disciplinary Board, all experienced attorneys, the words ‘Video Taped Will’ had no clearly defined meaning.
“Mr. Sherrill: What is a video tape will, Mr. Lyon?
“Mr. Chairman: Does the video tape will supplement a written will?
“Mr. Robinson: All right. Your charge you list in there, $250. Does that include everything including the cost of film and all that?”

Then, in its argument that Lyon and Blal-ock violated DR 2-101(A) (Charge I), the Bar states:

“As hereinabove illlustrated, by quotations set forth in the Statement Of The Pacts, the members of the Disciplinary Board, all experienced attorneys, did not understand the meaning of the words ‘Video Taped Will.’
“The record reflects that the words ‘Video Taped Will’ have no clearly defined meaning to the members of the legal profession, and, a fortiori, would be virtually meaningless to a member of the unsophisticated public.”

The Bar must prove the guilt of the attorneys charged by a preponderance of the evidence, Dodd v. Board of Commissioners of the Alabama State Bar, 350 So.2d 700, 705 (Ala.1977). The record reveals that the Bar introduced no evidence that the words “Video Taped Will” caused the advertisement to be misleading, but relied instead on the questions asked by the Board during the hearing as evidence. Therefore, the Bar failed to prove that Lyon and Blalock were guilty of Charge I, and, accordingly, the Board’s finding that Lyon and Blalock were guilty of Charge I is due to be reversed.

II

In its argument that Lyon and Blal-ock violated DR 2—102(A)(7)(b) (Charge II), which allows for attorney advertising of “routine legal services,” the Bar concluded that the advertisement of the video taped will was not the advertisement of a routine legal service. That conclusion was also based upon questions from the Board and the testimony of Lyon that he had learned about video taped wills only a year prior to the advertisement:

“Since it is apparent that the members of the Disciplinary Board did not comprehend the precise meaning and significance of the words ‘Video Taped Will,’ and since the Respondent, I. Harry Lyon, only learned of the meaning and significance of these words just approximately a year before the publication of the advertisement of February 19, 1981, it is obvious that a member of the public would have no idea what he was asked to purchase for a price of 250.00.” (Appel-lee’s brief, p. 18.)

The fact that Lyon had learned about video taped wills only a year prior to the advertisement is not enough to create a preponderance of the evidence that a video taped will is not a routine legal service. For that reason, and the reasons discussed in regard to Charge I, the.Board’s finding that Lyon and Blalock were guilty of Charge II is also due to be reversed.

III

In addition to the requirement that only routine legal services may be advertised, DR 2-102(A)(7)(b) requires that a reasonably accurate estimate of court costs be included in an attorney’s advertisement. Charge III dealt with that aspect of the rule. Lyon and Blalock admitted that they did not strictly comply with this rule; however, they included in each advertisement the following statement: “(ABOVE FEES DO NOT INCLUDE COURT COSTS).” The attorneys stated at the hearing that they anticipated that the legislature might increase the court costs and, therefore, they did not include any specific cost estimates. The Bar argues that the attorneys could have included a reasonable estimate and that their uncertainty about the costs did not excuse them from compliance with the rule.

Our analysis of the Board’s finding that the attorneys were guilty of Charge III is a different one from the analyses of Charges I and II. In the preceding discussion of those charges, we were concerned with whether the Bar proved that Lyon and Blalock violated the rules as charged. Because we held that the Bar had not met its burden of proving that those rules were violated, we did not reach the issue of the constitutionality of those rules. In regard to Charge III, the attorneys admit that they did not comply with the requirement of DR 2 — 102(A)(7)(b) to include an estimate of court costs. The question, then, is not whether the rule was violated, but whether the requirement to include an estimate of court costs is a constitutional restriction on attorney advertising.

To answer that question, we turn to the test which was formulated in Central Hudson Gas v. Public Service Commission of New York, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980) (quoted in In The Matter of R.M.J., 455 U.S. at 203-04, 102 S.Ct. at 937-38:

“In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”

Lyon and Blalock included in their advertisement a statement that the costs for the services advertised did not include court costs. An inclusion of specific costs would have made the advertisement more informative to some, but that, in and of itself, is not enough to cause the advertisement to be misleading. Anyone reading the advertisement would have been aware that the prices did not include court costs and could have taken steps to determine what those costs were.

Furthermore, the Bar has not identified any substantial interest in having a list of specific court costs included in an advertisement rather than a statement such as the one used by Lyon and Blalock in their advertisement. Central Hudson Gas, supra. Therefore, this restriction upon Lyon and Blalock’s First Amendment rights cannot be sustained under the facts of this case. The Board’s finding of guilty under Charge III is due to be reversed.

IV

Charge V deals with DR 2-102(A)(7)(f), which required the following disclaimer: “No representation is made about the quality of legal services to be performed or the expertise of the lawyer performing such services.” The attorneys admit that they failed to include this disclaimer in their advertisement. Therefore, as in the preceding discussion of Charge III, the issue is not whether the Bar proved that the rule was violated, but whether the rule is constitutional. This Court previously addressed that issue in Mezrano v. Alabama State Bar, 434 So.2d 732 (Ala.1983), and upheld the disclaimer requirement as a constitutional restriction on commercial speech.

In Mezrano, we stated that the Bar could reasonably conclude that attorneys should not hold themselves out as being superior to other attorneys, because the Bar has no rating system for attorneys. 434 So.2d at 735. Additionally, we found that attorneys’ representations about the quality of their legal services could mislead the public, because the Bar does not identify attorneys as specialists. Id. Implicit in our holding in Mezrano is that any type of price advertising by attorneys involves inherent questions of quality. This premise was recognized by Justice Powell in Bates:

“[T]he Court notes that it has not addressed ‘the peculiar problems associated with advertising claims relating to the quality of legal services.’ [433 U.S. at 366, 97 S.Ct. at 2700] There are inherent questions of quality in almost any type of price advertising by lawyers, and I do not view appellants’ advertisement as entirely free from quality implications.” 433 U.S. at 400 [97 S.Ct. at 2717] (Powell, J., concurring in part and dissenting in part).

Furthermore, it is reasonable to assume that some readers of an advertisement, such as the one presently before us, might believe that the attorney is a specialist or has greater expertise in performing the services advertised than attorneys who do not advertise. Accordingly, we upheld the disclaimer requirement in Mezrano because of the Bar’s substantial interest in preventing the public from being misled. This restriction meets the requirements of Central Hudson Gas and R.M.J. because the disclaimer is directly related to that interest, and it is not more extensive than necessary to serve that interest. Therefore, the Board’s finding that Lyon and Blalock were guilty of Charge V is due to be affirmed.

Based upon our preceding discussion of the issues presented in this case, the Board’s findings that Lyon and Blalock were guilty, of Charges I, II, and III are due to be, and they hereby are reversed, and the case is remanded as to Charges, I, II, and III for further proceedings consistent with this opinion. The finding that the attorneys were guilty of Charge V is due to be, and it is hereby, affirmed.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

All the Justices concur, except MADDOX, J., who recuses himself.