author: | ¶ KIMBALL, Justice. 11 CALOGERO, Chief Justice,

text:
    OCEAN ENERGY, INC. v. PLAQUEMINES PARISH GOVERNMENT.
    No. 2004-C-0066.
    Supreme Court of Louisiana.
    July 6, 2004.
    Rehearing Denied Sept. 3, 2004.

      Onebane Law Firm, Lawrence L. Lewis, III, Lafayette, for applicant.
    Johnette L. Martin, Houma, for respondent.
   | ¶ KIMBALL, Justice.

The issue presented by this case is whether the prohibition found in La. Const, art. VII, § 4(C) against political subdivisions levying a tax on motor fuel applies to off-road diesel fuel purchased by a corporation and used primarily in the operation of the internal combustion engines of “its marine vessels that were used to transport supplies and personnel and to service its offshore drilling and production facilities on the outer continental shelf of the Gulf of Mexico. For the reasons that follow, we conclude that the technical definition of “motor fuel” as provided in La. R.S. 47:712(1) cannot be used to interpret the term “motor fuel” as used in Article VII, § 4(C) of the constitution. We further conclude that a more general definition, and one that comports with the intent of the framers and the voting population as a whole, should be used to interpret the constitutional provision at issue. Therefore, after thoroughly weighing all relevant principles, laws, policies, and arguments, we find that the off-road diesel fuel purchased by the corporation for use in the operation of the internal combustion engines of its marine vessels is included in the term “motor fuel” as used in La. Const. | ¡..art. VII, § 4(C). Consequently, we find the local taxing authority involved in this suit is without the power to levy a tax on the off-road diesel fuel at issue.

Facts and Procedural History

Plaquemines Parish Government (hereinafter “PPG”) is a political subdivision of the State of Louisiana and the governing authority of the Parish of Plaquemines. As the collector of local sales and use taxes levied by various local political subdivisions within the parish, PPG, through its Sales Tax Division, conducted an audit of Ocean Energy, Inc. (hereinafter “OEI”) for the taxable period of July 1, 1995 through June 30, 1998. The audit revealed that OEI failed to pay sales and use taxes on its consumption of off-road, or “dyed,” diesel fuel during the period at issue. The diesel fuel at issue was primarily used by OEI to operate the internal combustion engines of its marine vessels, which were used to transport supplies and personnel and to service its offshore drilling and production facilities on the outer continental shelf of the Gulf of Mexico.

By a letter dated May 24, 2000, OEI was assessed delinquent sales and use taxes, interest, and penalty in the amount of $268,275.51for the period July 1, 1995 through June 30, 1998. On June 8, 2000, OEI paid the amount assessed under protest and informed PPG of its intent to file suit for the recovery of the taxes, interest, and penalty paid, along with interest as provided by law from the date of payment.

On June 28, 2000, OEI filed a Petition for Refund of Sales/Use Taxes Paid Under Protest in the district court. On February 28, 2002, OEI filed a motion for summary judgment on the grounds that the assessment at issue is barred by La. Const. [ 3art. II, § 4(C), which prohibits a political subdivision of the state from levying a tax on motor fuel. In response, PPG filed a cross-motion for summary judgment alleging that there are no applicable constitutional or statutory prohibitions against PPG levying and collecting sales and use taxes on off-road diesel fuel during the tax period at issue.

Following a hearing, the district court denied the motion for summary judgment filed by OEI, and granted the cross-motion for summary judgment filed by PPG. The district court dismissed OEI’s petition in its entirety at OEI’s costs. The district court’s reasons for judgment consisted solely of the following paragraph:

This Court agrees with the position of the Plaquemines Parish Government in this matter that there is no constitutional prohibition against the collection of a tax by the Government against sales transactions which include diesel fuel. Such a tax is not a tax on motor fuel such as is prohibited.

After the rendition of the district court’s judgment, OEI filed a devolutive appeal. The court of appeal affirmed the district court’s judgment denying OEI’s motion for summary judgment and granting PPG’s cross-motion for summary judgment. Ocean Energy, Inc. v. Plaquemines Parish Gov’t., 03-0805 (La.App. 4 Cir. 12/10/03), 863 So.2d 618. In reaching this decision, the court of appeal determined that the diesel fuel at issue was not “motor fuel” as that term is used in La. Const, art. VII, § 4(C) and that OEI’s purchase and consumption of the off-road diesel fuel was subject PPG’s sales and use tax ordinance. The court of appeal found that although the constitution does not define the term “motor fuel,” the phrase is not ambiguous as the definition of “motor fuel” found in La. R.S. 47:712 can be used to supplement La. Const, art. VII, § 4(C). Because the off-road diesel fuel used by OEI does not meet the statutory definition of “motor fuel” provided by La. R.S. 47:712(1), the court of appeal concluded that the assessed tax was not prohibited. Additionally, the court of appeal concluded that the term “motor fuel” has held virtually the same ^meaning since the 1920s and that the term was never intended to include the diesel fuel at issue. Finally, the court of appeal determined that the right of PPG to levy a tax on off-road diesel fuel pursuant to La. Const, art. VI, § 29, which provides that the governing authority of a local government subdivision may levy and collect a tax upon the sale at retail, the use or the consumption of tangible personal property, is consistent with other constitutional provisions that expressly mention diesel fuel. Consequently, the court of appeal found that the provisions of La. Const, art. VII, § 4(C) do not prohibit PPG from levying a tax on the diesel fuel at issue.

We granted certiorari to consider the correctness of the court of appeal’s interpretation of the term “motor fuel” as used in La. Const. art. VII, § 4(C). Ocean Energy, Inc. v. Plaquemines Parish Gov’t., 04-0066 (La.3/26/04), 871 So.2d 331.

Discussion

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The summary judgment procedure is favored and “is designed to secure the just, speedy, and inexpensive determination of every action....” La. C.C.P. art. 966(A)(2).

This court’s review of a grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, 03-1424, p. 5 (La.4/14/04), 870 So.2d 1002, 1006. Thus, we ask the same questions as the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id; Robinson v. Heard, 01-1697, pp. 3-4 (La.2/26/02), 809 So.2d 943, 945.

In the instant case, the sole issue presented for our review is whether PPG is | ¡^prohibited by La. Const, art. VII, § 4(C) from levying sales and use taxes on off-road diesel purchased by OEI and used primarily to operate the internal combustion engines of its marine vessels, which were used to transport supplies and personnel and to service its offshore drilling and production facilities on the outer continental shelf of the Gulf of Mexico.

OEI contends that the court of appeal erred in using the definition of “motor fuel” provided in La. R.S. 47:712(1) to interpret that term in the constitutional prohibition found in La. Const, art. VII, § 4(C). Additionally, OEI asserts that the court of appeal’s decision misinterprets and misapplies the legislative history of the constitutional prohibition. OEI argues that because the generally prevailing meaning of the term “motor fuel” as used in La. Const, art. VII, § 4(C) clearly includes diesel fuel that is used to power the internal combustion engine of a marine vessel, its motion for summary judgment should be granted.

PPG, on the other hand, argues that the term “motor fuel” has been defined by the legislature since the 1920’s and has never included off-road diesel fuel. Consequently, PPG asserts that the off-road diesel fuel at issue is not “motor fuel” as that term is used in La. Const, art. VII, § 4(C), and it is therefore not prohibited from levying sales and use taxes on the fuel. Furthermore, PPG contends that La. Const, art. VII, § 27, which created the Transportation Trust Fund effective January 1, 1990, specifically exempts diesel fuel from state sales tax and any sales tax levied by a political subdivision, but only if the purchase is subject to excise tax under Chapter 7 of Subtitle II of Title 47 of the Louisiana Revised Statutes of 1950. Because the off-road diesel fuel at issue is not subject to the referenced excise tax, PPG contends that it is not provided an exemption from state and local government sales tax. Finally, PPG argues that the legislative history of La. Const, art. VII, § 4(C) does not support [ Ba conclusion that the term “motor fuel” includes off-road diesel fuel.

The state’s power to tax is unlimited except as restricted by constitutional provisions. Radiofone, Inc. v. City of New Orleans, 93-0962, p. 2 (La.1/14/94), 630 So.2d 694, 696. In contrast, local governmental subdivisions have only the power to tax that has been granted to them by the state constitution or the statutes. Id. The governing authority of any local governmental subdivision is granted the authority to levy and collect a tax upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use or consumption of tangible personal property by La. Const, art. VI, § 29. However, pursuant to La. Const, art. VII, § 4(C), a political subdivision is not granted the power to levy a tax on motor fuel. On November 16, 1977, PPG adopted Ordinance No. 174, levying within the Parish of Plaquemines a tax of one per cent upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use or consumption of tangible personal property pursuant to La. Const, art. VI, § 29. The ordinance defines “tangible personal property” to “mean and include personal property which may be seen, weighed, measured, felt or touched, or is in any other manner perceptible to the senses.” While off-road diesel fuel may be included in the definition of “tangible personal property” as provided in the ordinance, PPG has no power to tax the fuel if it is “motor fuel” within the meaning of La. Const, art. VII, § 4(C).

The starting point in the interpretation of constitutional provisions is the 17language of the constitution itself. East Baton Rouge Sch. Bd. v. Foster, 02-2799, p. 15 (La.6/6/03), 851 So.2d 985, 996. When a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect. Id. Unequivocal constitutional provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. Cajun Elec. Power Coop. v. Louisiana Pub. Serv. Com’n, 544 So.2d 362, 363 (La.1989) (on rehearing).

When the constitutional language is subject to more than one reasonable interpretation, it is necessary to determine the intent of the provision. East Baton Rouge Parish Sch. Bd., 02-2799 at pp. 15-16, 851 So.2d at 996. In seeking to ascertain constitutional intent, the same general rules used in interpreting laws and written instruments are followed. East Baton Rouge Parish Sch. Bd., 02-2799 at p. 16, 851 So.2d at 996. When construing an ambiguous constitutional provision, a court should ascertain and give effect to the intent of both the framers of the provision and of the people who adopted it; however, in the ease of an apparent conflict, it is the intent of the voting population that controls. Id.

In construing a constitutional provision, the courts may consider the object sought to be accomplished by its adoption, and the evils sought to be prevented or remedied, in light of the history of the times and the conditions and circumstances under which the provision was framed. Succession of Lauga, 624 So.2d 1156, 1160 (La.1993). Additionally, if one constitutional provision addresses a subject in general terms, and another addresses the same subject with more detail, the two provisions should be harmonized if possible, but if there is any conflict, the latter will prevail. Perschall v. State, 96-0322, p. 22 (La.7/1/97), 697 So.2d 240, 255. However, where the language of a constitutional prohibition makes its aim evident and unequivocal, |scourts need not consider the historical basis for the prohibition and may not, by separately considering related constitutional provisions, arrive at a construction that detracts from the effectiveness or manifest meaning and purpose of the related provisions. Perschall, 96-0322 at p. 22, 697 So.2d at 256.

In Caddo-Shreveport Sales & Use Tax Com’n v. Office of Motor Vehicles, 97-2233 (La.4/14/98), 710 So.2d 776, this court had the task of interpreting the constitution’s specific delegation to local governments of the right to levy and collect sales and use taxes. After stating the general rules of constitutional interpretation, the court stated, “In order to ascertain the ordinary, usual, and commonly understood meaning of a word not otherwise defined in a constitution, courts generally look first to the dictionary definition.” Caddo-Shreveport Sales & Use Tax Com’n, 97-2233 at p. 7, 710 So.2d at 776, 780 (citing 16 Am.Jur.2d Constitutional Law § 71 (1998)). The court then turned to the common dictionary meaning of the term “collect” to find the “layman’s understanding” of the word. Id. After finding a reasonable and common meaning, the court concluded that because the constitution expressly grants the power to collect local taxes to local government, it implicitly prohibits the legislature from appointing a state agency to collect local taxes absent consent of the local tax collector.

In City of New Orleans v. Scramuzza, 507 So.2d 215 (La.1987), a case cited by both parties, this court interpreted the term “income tax” as used in La. Const, art. VII, § 4(C), the same constitutional provision at issue in this case. The issue involved whether the New Orleans Earnings Tax Ordinance, which imposed a tax of 1.5% on annual gross earnings in excess of $5000 on every person working in the City of New Orleans, was unconstitutional under La. Const, art. VII, § 4(C). In interpreting the meaning of “income tax” within the factual context presented, the court stated, “The |flwords and terms expressed in the Constitution are to be interpreted by the court with an understanding of the definitions which would have been given to those words or terms by the people when they adopted the Constitution.” Id. at 217. The court determined that giving a precise definition of an income tax would prove to be a near impossible task and that any definition must necessarily vary to conform to the different systems of income taxation. Id. at 218. The court then cited a general explanation of our state income tax found in a statute, a definition of the term “income tax” from Black’s Law Dictionary, and a definition from the U.S.Code.

After examining these different definitions, the court stated, “Fortunately, our task is not to define ‘income tax,’ but merely to determine if the Earnings Tax should be classified as a prohibited form of ‘income tax’ under our Constitution.” Id. Thus, without actually defining the word, the court found that income tax, as demonstrated by the different definitions, may be understood both technically and in more general terms. Id. The court reiterated the presumption of constitutional interpretation in favor of the natural and popular meanings in which words are usually understood by the people who adopt them. Id. The court found that it would be difficult to believe that the majority of the voting population believed that a tax on their earnings is not an income tax. Id.

The court went on to state that an income tax in the most generally understood terms is a tax on income. Because the ordinance at issue defined “earnings” as “total wages, commissions, earnings, tips, and/or salaries of an employee,” the court found that for the vast majority of taxpayers, the Earnings Tax would be imposed on their major source of income. Id. Therefore, the court found, the ordinance was prohibited by the constitution. To interpret the provision so narrowly as to allow the City to levy the tax would defeat the obvious constitutional purpose to prohibit local income taxes. | inId

The court went on to state that it had “determined the constitution affords no definitional guidance, nor is there relevant statutory material lending clarification to the term ‘income tax.’ ” Id. at 219. The court concluded again that the people, in adopting the constitution, did not understand the term in a technical sense and, because there was no ambiguity when using the general and popular meaning of the words, the intent of its redactors was not a proper consideration.

Article VII, section 4 of the 1974 Constitution, entitled “Income Tax; Severance Tax; Political Subdivisions,” provides in subsection (C):

(C) Political Subdivisions; Prohibitions. A political subdivision of the state shall not levy a severance tax, income tax, inheritance tax, or tax on motor fuel.

With the foregoing principles of interpretation in mind, we turn to the question of whether the prohibition against a political subdivision levying a “tax on motor fuel” prevents PPG from levying a sales and use tax on the off-road diesel purchased by OEI and used primarily to operate the internal combustion engines of its marine vessels.

Our constitution does not otherwise define the term “motor fuel.” PPG contends that in the absence of a constitutional definition, this court should look to the definition provided by La. R.S. 47:712(1), which is contained in the Title relating to Revenue and Taxation and the Chapter dealing with Taxes on Petroleum Products.

In pertinent part, La. R.S. 47:712 provides:

As used in this Part, unless the context indicates otherwise:
(1) “Motor fuel” means all volatile gas generating liquids having a flash point below 110 degrees F.

The parties agree that the off-road diesel fuel purchased by OEI has a flash point above 110 degrees F., and is therefore not a “motor fuel” as used in Part I of Chapter |T17 of Subtitle II of Title 47 relating to Gasoline Taxes.

Article 6, § 22(a) of the 1921 Constitution, as amended pursuant to Act No. 219 of 1928, authorized the legislature to define the term “motor fuels” as follows:

On gasoline, benzine, naphtha and other motor fuels, as defined by law, when sold, used or consumed in the State of Louisiana, there shall be levied a tax not to exceed four cents (4c) per gallon, to be collected as prescribed by law.

At that time, the prevailing statute levying the tax on motor fuel was Act No. 142 of 1924, which defined “motor fuel” as “all volatile gas-generating liquids having a flash point below 110 degrees F., commonly used to propel motor vehicles.” Subsequently, Act No. 6 of the 1928 Extra Session was enacted

To provide revenues for the public highways of the State of Louisiana by levying a tax of four cents per gallon on all gasoline or motor fuel sold, used or consumed in the State of Louisiana for domestic consumption, as authorized by paragraph A, Section 22, Article VI, of the Constitution of Louisiana, of 1921, as amended, defining motor fuel....

The term “motor fuel” was re-defined by the Act to add “or motors” to the end of the definition, so that it read that “motor fuel” was defined as “all volatile gas-generating liquids having a flash point below 110 degrees F., commonly used to propel motor vehicles or motors.” The definition was later amended by Act No. 16 of 1932 to eliminate the words “commonly used to propel motor vehicles or motors.” Thus, the definition read, as it does today in La. R.S. 47:712(1), that “motor fuel” means “all volatile gas-generating liquids having a flash point below 110 degrees F.” This amendment was enacted

to give the state greater security in the collection of the tax by relieving the state of the burden of proving that the liquid was commonly used to propel motor vehicles or motors and shifting to the dealer against whom the claim for the tax was made the burden of showing that the product in question was not motor fuel.

State v. Nola Oil Co., 184 La. 849, 855-56, 167 So. 751, 753 (1936).

haPPG asserts that because the term “motor fuel” had an established statutory definition at the time the 1974 Constitution was adopted, this definition should be used to interpret the constitutional prohibition found in La. Const, art. VII, § 4(C). After considering the history of the constitutional prohibition at issue, the statutory definitions of “motor fuel,” and the general principles of constitutional interpretation, we conclude that the definition of “motor fuel” provided by La. R.S. 47:712(1) should not be used to interpret the constitutional prohibition against political subdivisions levying a tax on motor fuel found in La. Const, art. VII, § 4(C).

The constitutional authority given to the legislature by Article VI, § 22(a) of the 1921 Constitution to define the term “motor fuels” for purposes of taxation was not carried over into the 1974 Constitution. The provisions of Article VI, § 22(a) of the 1921 Constitution that directed the legislature to define “motor fuels” were deleted by the Committee on Revenue and Finance during the 1973 constitutional convention. See Records of the Louisiana Constitutional Convention of 1973: Committee Documents and User Guides, Vol. XIV-B, p. 1547. In the absence of an express constitutional directive in La. Const, art. VII, § 4(C) that the legislature define the term “motor fuel,” or a reference to the pre-existing legislative definition, we do not believe that we are constrained to use the definition provided by La. R.S. 47:712(1) to interpret a constitutional provision.

Perhaps more importantly than the absence of a constitutional directive to the legislature to define the term “motor fuel” is the fact that several statutory definitions of “motor fuel” exist. In addition to the definition provided by La. R.S. 47:712(1), the term “motor fuel” is also defined by La. R.S. 47:451, La. R.S. 40:1842, and La. R.S. 30:2194. In a Chapter relating to the Vehicle Registration License Tax, La. R.S. 47:451 provides that “motor fuel,” as used in that Chapter, “means every kind and [ ^character of fuel used in the operation of a motor vehicle and embraces every such fuel contemplated by Chapter 7 of this Sub-title.” In a Part dealing with the Louisiana Liquefied Petroleum Gas Commission, La. R.S. 40:1842 states that, as used in that Part, “ ‘motor fuel’ means liquefied petroleum gases of a type distributed for use as a fuel in self-propelled agricultural or industrial equipment, and vehicles designed for use on public streets, roads, and highways.” In a Chapter dealing with Hazardous Waste Control Law, La. R.S. 30:2194 provides that as used in La. R.S. 30:2194 through 2195.10, “ ‘motor fuels’ shall be defined as all grades of gasoline including but not limited to gasohol, No. 1 diesel, No. 2 diesel, kerosene, and all aviation fuels.”

Notably, each definition of “motor fuel,” including that found in La. R.S. 47:712(1), is limited by its own terms to a particular set of statutes. PPG acknowledges that several statutory definitions of “motor fuel” exist, but argues that the definition found in La. R.S. 47:712(1) should be used to interpret La. Const, art. VII, § 4(C) because it is contained in a Part dealing specifically with gasoline taxes. However, because we find no constitutional intent to utilize a statutory definition of “motor fuel,” because we find the definition provided by La. R.S. 47:712(1) is limited by its own terms to references to “motor fuel” in Part I of Chapter 7 of Subtitle II of Title 47, and because there are several distinct statutory definitions of the term “motor fuel” that could conceivably be used to interpret the prohibition in La. Const, art. VII, § 4(C), we find this argument is without merit.

Moreover, in accordance with the general principles of constitutional interpretation enunciated above, we do not believe that the voters of this state, when adopting the constitutional prohibition against political subdivisions levying taxes on motor fuel, understood “motor fuel” with reference to the technical definition provided by La. R.S. 47:712(1) dealing with the flash point of a volatile gas-generating liquid. | uThe most common dictionary definition of the term “motor” is a device, such as a machine or engine, that generates, produces, or imparts motion. See, e.g. The American Heritage Dictionary of the English Language (4th ed.2000); Webster’s II New College Die- tionary (1995); Webster’s Third New International Dictionary of the English Language Unabridged (1968). The most common dictionary definition of the word “fuel” is matter or material consumed or burned to produce energy. See, e.g. The American Heritage Dictionary of the English Language (4th ed.2000); Webster’s II New College Dictionary (1995); Webster’s Third New International Dictionary of the English Language Unabridged (1968). In ordinary terms, then, “motor fuel,” means a material that is burned to produce motion in a machine or engine. In our view, the layman’s understanding of a prohibition against political subdivisions levying a tax on motor fuel would be that political subdivisions are denied the power to levy a tax on a material that is burned to produce motion in a machine or engine.

This understanding is supported by the history of La. Const, art. VII, § 4(C), whose source provision is Article XIV, § 24.1 of the 1921 Constitution. This section of the 1921 Constitution, entitled “Motor fuel; local taxation prohibited,” provided:

No parish, municipality or other political subdivision, shall levy an excise, license or privilege tax upon gasoline, kerosene or other combustibles used in the generation of motive power; provided that nothing in this Constitution shall be construed to limit the right of the Legislature to levy State taxes on gasoline, benzine, naphtha and other motor fuels.

This provision of the 1921 Constitution appears to us to equate the terms “motor fuels” with gasoline, kerosene, benzine, naphtha, and other combustibles used in the generation of motive power. See generally Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958) (on rehearing).

|1sThe Committee Proposal of what is now La. Const. art. VII, § 4(C) stated, “Political subdivisions of the state shall not levy taxes on ... motor fuel.” The comment to this provision stated, “The prohibition against political subdivisions taxing ... motor fuel represents no change in the present law.” Official Journal of the Proceedings of the Constitutional Convention of 1973 of the State of Louisiana, Vol. 1, 11th Days Proceedings — July 6, 1973, p. 127. See also R. Gordon Kean, Jr., Local Government and Home Rule, 21 Loy. L.Rev. 63, 73 n. 24 (1975) (“The prohibition against the levy of a ... motor fuel tax [in Article VII, § 4(C) ] is a carry-over from the 1921 Constitution.”). In light of the above, we believe the framers intended that the term “motor fuel” as used in La. Const, art. VII, § 4(C) mean substantially the same as a combustible used in the generation of motive power. This general definition comports with the intention previously ascribed to the voting population as a whole.

Consequently, we find that both the framers and the voters intended that political subdivisions be prohibited from levying a tax on a material that is burned to produce motion in a machine or engine, or, stated in a different way but with the same meaning, on a combustible used in the generation of motive power. The off-road diesel fuel at issue purchased by OEI was used primarily to operate the internal combustion engines of its marine vessels. As such, we believe the off-road diesel at issue falls within the term “motor fuel” as used in La. Const, art. VII, § 4(C).

PPG argues that a general definition of the term “motor fuel” that includes diesel fuel is unsupportable in light of a more recent amendment to the constitution that added La. Const, art. VII, § 27(A). This Article, effective January 1, 1990, established the Transportation Trust Fund and provides in pertinent part:

Purchases of gasoline, diesel fuel, or special fuels which are subject to excise tax under Chapter 7 of Subtitle II of Title 47 of the Louisiana Revised Statutes of 1950 shall be exempt from the state sales tax and any sales tax levied by |1fia political subdivision....

PPG contends that the court of appeal correctly reasoned that if we were to conclude- that political subdivisions were unconditionally prohibited from levying a sales tax on diesel fuel under Article VII, § 4(C) of the constitution, then the constitutional exemption provided by -La. Const. Art. VII, § 27(A) would be rendered meaningless or unnecessary. We do not agree with this assessment. First, Article VII, § 27(A) exempts only diesel fuel that is subject to the excise tax under Chapter 7 of Subtitle II of Title 47 of the Louisiana Revised Statutes of 1950. Because the diesel fuel at issue is not subject to the excise tax referred to in the Article, the exemption provided by Article VII, § 27(A) is inapplicable in this case. Second, as stated above, where the language of constitutional prohibition makes its aim evident and unequivocal, this court may not arrive at a construction that detracts from the effectiveness or manifest meaning and purpose of the provision by separately considering related constitutional provisions. Third, the exemption provided by La. Const, art. VII, § 27(A) can be construed as re-affirming the prohibition contained in Article VII, § 4(C) against political subdivisions levying taxes on diesel fuel used in the generation of motive power.

In a similar vein, PPG argues that several statutes, such as La. R.S. -47:305.37, JjjLa. R.S. 47:305.20, and La. R.S. 47:305.10, provide exemptions from local sales tax |1son diesel fuel used for farm purposes, purchased for commercial fishing vessels, and purchased for first use beyond the territorial limits of Louisiana. PPG contends that these statutes indicate that local governments are free to tax diesel fuel unless a specific exemption applies. We find, however, that these statutes, which first provide an exemption from state taxes in applicable circumstances and then provide that the exemption shall, or in some cases may, be similarly applied to local taxes, serve to reaffirm the constitutional prohibition provided by La. Const, art. VII, § 4(C). In any case, the statutes cannot be construed to somehow authorize the levying of a tax 119prohibited by the constitution.

After thoroughly considering the constitutional language of the prohibition at issue, the history of the constitutional prohibition and the allegedly applicable statutes, the principles of constitutional interpretation, and the arguments of both parties, we conclude that the off-road diesel fuel purchased by OEI for use in the operation of the internal combustion engines of its marine vessels used to transport supplies and personnel and to service its offshore drilling and production facilities on the outer continental shelf of the Gulf of Mexico is included in the term “motor fuel” as used in La. Const, art. VII, § 4(C). As such, it is not subject to the sales and use tax imposed on tangible personal property by PPG. Accordingly, we reverse the judgment of the court of appeal that affirmed the district court’s denial of OEI’s motion for summary judgment and granting of PPG’s motion for summary judgment.

The affidavit of OEI’s production manager was introduced by OEI to show how the diesel fuel at issue was purchased and used during the tax period. The affidavit states that the fuel

was for motor fuel for vessels operated by OEI in connection with its offshore drilling and production facilities on the outer continental shelf of the Gulf of Mexico adjacent to Plaquemines Parish, Louisiana. The fuel was delivered by OEI’s vendors into the tanks of the vessels operated by OEI and used in the operation of the vessels’ internal combustion engines for the generation of power to propel the vessels. A small amount of the diesel fuel purchased had other incidental uses for running of other equipment and as a solvent in the maintenance of wellhead equipment. Appearer estimates that not more than 2% of the fuel purchased during the period July 1, 1995 through June 30, 1998, was used for the incidental purposes other than as motor fuel.

(Emphasis added.) We have concluded herein that political subdivisions are prohibited from levying a tax on a material that is burned to produce motion in a machine or engine, or on a combustible used in the generation of motive power. It is | snnot clear from the record whether all the off-road diesel fuel at issue was burned to produce motion in a machine or engine or was a combustible used in the generation of motive power. Consequently, we remand the case to the district court for further proceedings consistent with this opinion.

Decree

For the reasons expressed above, we conclude that La. Const, art. VII, § 4(C) prohibits the taxation by political subdivisions of off-road diesel that is burned to produce motion in a machine or engine, or is a combustible used in the generation of motive power. Consequently, the judgment of the court of appeal is reversed and the case is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

CALOGERO, C.J., dissents and assigns reasons.

11 CALOGERO, Chief Justice,

dissenting.

I respectfully dissent from the majority’s reversal of the two lower courts. The issue presented to us is whether Article VII, § 4(C) of the 1974 Constitution, which prohibits a political subdivision of the state from levying a tax on “motor fuel,” prevents the Plaquemines Parish Government from levying a sales and use tax on dyed (off-road) diesel fuel purchased and consumed by Ocean Energy, Inc. In my view, the 1974 Constitution does not prohibit the Parish from levying the sales and use tax on the tangible personal property contested by the plaintiff, because the dyed diesel fuel purchased and consumed by the plaintiff was not “motor fuel” as that term is defined for purposes of the constitutional prohibition. Consequently, the purchase and consumption of this diesel fuel was subject to the Parish’s sales and use tax ordinance pursuant to the Parish’s taxing authority granted by La. Const, art. VI, § 29(A).

The Parish’s arguments have merit, as two of our appellate courts have also found: the Fourth Circuit in Ocean Energy, Inc. v. Plaquemines Parish Government, 03-0805 (La.App. 4 Cir. 12/19/03), 863 So.2d 618, the opinion under review, and the First Circuit in Simons Petroleum, Inc. v. Dane Falgout, Sales Tax Director, for the Sales & Use Tax Department of the Pointe Coupee Parish Police Jury, 03-0610 (La.App.2 1 Cir. 2/23/04), 873 So.2d 65, for which a writ application is pending in this court. Both courts have concluded that dyed (off-road) diesel fuel is not a “motor fuel” under La. Const, art. VII, § 4(C).

The majority today errs in failing to recognize that the phrase “motor fuel” is an unambiguous term with a specific technical meaning when used in the context of the imposition or prohibition of taxes on petroleum products. La. Civ.Code art. 11 provides in part that “[w]ords of art and technical terms must be given their technical meaning when the law involves a technical matter.” Pursuant to its constitutional authority under Article VI, § 22(a) of the 1921 Constitution, the legislature, by enactment in the 1920s of La.Rev.Stat. 47:712(1), which is contained in the Revenue and Taxation Chapter of the Revised Statutes concerning “Taxes on Petroleum Products,” has defined “motor fuel” as “all volatile gas generating liquids having a flash point below 110 degrees F.” The parties concede that dyed (off-road) diesel fuel does not satisfy this definition of motor fuel. Accordingly, I see no reason to refer to a dictionary definition of the term to determine the intent of the framers of the 1974 Constitution or of the voters accepting that constitution.

Even if I were to find that the term “motor fuel” is ambiguous because it is not defined in the constitution itself, I agree with the First Circuit’s reasoning in Si-mons Petroleum that there exists relevant statutory material in the form of La.Rev. Stat. 47:712(1) to lend clarification to the term “motor fuel.” See Simons Petroleum, Inc. v. Falgout, 03-0610, 873 So.2d at 71; see also La. Civ.Code art. 13; cf. City of New Orleans v. Scramuzza, 507 So.2d 215 (La.1987). Moreover, this definition, La.Rev.Stat. 47:712(1), had been recognized by the legislature for almost fifty years when the framers in 1973 crafted Article VII, § 4(C) of the 1974 Constitution to prohibit political subdivisions from levying a tax on “motor fuel.”

|3I also see nothing in the legislative history of Article VII, § 4(C) necessitating resort to a dictionary or common sense definition of the phrase “motor fuel.” The source provision in the 1921 Constitution, Article XIV, § 24.1, added by Act No. 395 of 1940 and ratified by the voters, prohibits the political subdivision from levying “an excise, license or privilege tax upon gasoline, kerosene or other combustibles used in the generation of motive power.” However, that provision also specifies that there would be no restriction on the legislature’s right “to levy State taxes on gasoline, benzine, naptha and other motor fuels.” The majority combines these two enumerations as “motor fuels” while ignoring the fact that the 1921 Constitution elsewhere authorized the legislature to define “motor fuel,” which the legislature had previously done in La.Rev.Stat. 47:712(1), a definition that does not include dyed (off-road) diesel fuel. That the framers of the 1974 Constitution did not intend to change the authority of the political subdivision to tax motor fuels does not necessarily translate into the conclusion that the term “motor fuels” as used in the 1921 Constitution now means something different when used in the 1974 Constitution.

The issue presented is a close one, and the Parish makes a persuasive argument that were we to hold that political subdivisions are prohibited from levying a sales and use tax on the purchase and consumption of dyed (off-road) diesel fuel under Article VII, § 4(C), various constitutional and legislative exemptions to the taxation of off-road diesel fuel by political subdivisions would essentially be redundant. See Simons Petroleum, Inc. v. Falgout, 03-0610, 873 So.2d at 73-74 and 74 n. 5. While La. Const. art. VII, § 27(A), and La. Rev. Stats. 47:305.37, 47:305.20, and 47:305.10 should not be construed as authorizing an otherwise prohibited tax by a political subdivision, these exemptions do raise a presumption that the legislature, as well as the voters ratifying Article VII, § 27(A) in 1990, understood that political subdivisions 14possessed the constitutional authority to levy sales and use taxes on dyed (off-road) diesel fuel in the absence of any exemption thereto.

At any rate, my view, that there is no constitutional prohibition against a political subdivision levying a sales and use tax against tangible personal property that includes dyed (off-road) diesel fuel, is now consistent with the well-considered opinions of two unanimous panels of our courts of appeal. Accordingly, I dissent from the majority’s reversal of the lower courts’ summary judgment in favor of Plaque-mines Parish Government.

      . The specific assessment was broken down as follows:
      Delinquent Sales/Use Tax $ 151,124.77
      interest thru 05/01/00 79,369.49
      Penalty 37,781,25
      Total Due: $268,275.51

      . This constitutional prohibition against a political subdivision levying a tax on motor fuel is a limit on the taxing power of local governmental subdivisions. As a limit on the taxing power of local governments, it is not the same as a tax exemption that exempts certain property from taxation that would otherwise be subject to the tax. Consequently, the general principle that tax exemptions are an exceptional privilege and must be affirmatively and clearly established and are strictly construed against the taxpayer, Showboat Star Partnership v. Slaughter, 00-1227, p. 10 (La.4/3/01), 789 So.2d 554, 560; Bill Roberts, Inc. v. McNamara, 539 So.2d 1226, 1229 (La.1989); McNamara v. Central Marine Serv., Inc., 507 So.2d 207, 208 (La.1987), is inapplicable in this case.

      . La. R.S. 47:305.37 provides:
      A. The state taxes imposed by R.S. 47:302(A), R.S. 47:321(A), and R.S. 47:331(A) shall not apply to diesel fuel, butane, propane, or other liquefied petroleum gases used or consumed for farm purposes. The secretary of the Department of Revenue shall adopt and promulgate rules and regulations necessary to effectuate the- exemptions granted by this Section.
      B. In any parish having a population of more than one hundred twenty thousand persons but less than one hundred forty thousand persons based on the latest federal decennial census:
      (1) The parish school board may by resolution adopted by the board provide an exemption from its sales and use tax as is provided for state sales tax in Subsection A of this Section....
      (2) The governing authority of a municipality may by resolution or ordinance provide an exemption as is provided for state sales tax in Subsection A of this Section from its sales and use tax and all sales and use taxes of political subdivisions levied solely within the territory of the municipality, except school board taxes.
      (3) The governing authority of a parish may by resolution or ordinance provide an exemption as is provided for state sales tax in Subsection A of this Section from its sales and use tax and all sales and use taxes of political subdivisions levied within the territory of the parish and all sales taxes levied both within and without the municipality, except school board taxes.

      .' La. R.S. 47:305.20 provides in pertinent part:
      A. A Louisiana resident, domiciled in Louisiana, who possesses such valid Louisiana commercial fishing license(s) as may be necessary for commercial fishing ventures, and who is an owner-operator óf a vessel operated primarily for the conduct of commercial fishing as a trade or business and which the Louisiana Department of Wildlife and Fisheries determines will be predominantly and principally used for commercial fishing ventures and whose catch is for human consumption shall be exempt from state sales, use, lease, and services taxes as set forth in Subsection C of this Section. Possession of a commercial license issued by the Department of Wildlife and Fisheries shall not be used as the sole determination that a vessel will be used predominantly and principally for commercial fishing ventures. This exemption shall also apply to facilities which process the catch from owner-operators of commercial fishing vessels for which this exemption is granted when such vessels are owned by, or leased or contracted exclusively to, the seafood processing facility.

      C. An owner-operator who has obtained a certificate of exemption shall, with respect to the vessel identified in the certificate for the harvesting or production of fish and other aquatic life, including shrimp, oysters, and clams, and certain seafood processing facilities described in Subsection A, be exempt from the taxes described in Subsection A, as follows:

      (4) Taxes applied to the purchase of gasoline, diesel fuel, and lubricants for the vessel and to sources of energy and fuels for the facility.

      G. This exemption applies only to sales and use tax imposed by the state of Louisiana and does not apply to such taxes authorized and levied by any school board, municipality, or other local taxing authority notwithstanding any other provision of law to the contrary, specifically but not exclusively R.S. 33:2716.1.

      . La. R.S. 47:305.10 provides in pertinent part:
      A. There shall be no sales or use tax due upon the sale at retail or use of tangible personal property, including diesel fuel, purchased within or imported into Louisiana for first use exclusively beyond the territorial limits of Louisiana as specifically provided hereinafter in this Section.

      I. The exemptions from the state sales and use tax provided in this Section shall be applicable to any sales and use tax levied by a local political subdivision or school board.


source: Caselaw Access Project

license: Public Domain

text:
    Joe CLARK, et al. v. TRUS JOIST MACMILLAN, A Limited Partnership, et al.
    No. 2004-CC-2034.
    Supreme Court of Louisiana.
    Aug. 9, 2004.
   In re Trus Joist MacMillan et al.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 70,287 B; to the Court of Appeal, Third Circuit, No. CW 04-00968.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Jesse James CASTON.
    No. 2004-KK-1777.
    Supreme Court of Louisiana.
    Aug. 9, 2004.
   In re Caston, Jesse James; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Madison, 6th Judicial District Court Div. B, No. 108,560; to the Court of Appeal, Second Circuit, No. 39008-KW.

Denied.

TRAYLOR, J., recused.


text:
    Richard GROVER, Jr. and Chrystal Grover v. DIALYSIS CLINIC, INC., et al.
    No. 2004-CC-2035.
    Supreme Court of Louisiana.
    Aug. 10, 2004.
   In re McLellan, Susan L.F. Dr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, Nos. 98-12405, 2001-18550; to the Court of Appeal, Fourth Circuit, No. 2004-C-1359.

Stay denied. Writ denied.

KNOLL, J., would grant the writ.


text:
    Richard A. SHARP, et al. v. A.P. GREEN INDUSTRIES, INC., et al.
    No. 2004-CC-2042.
    Supreme Court of Louisiana.
    Aug. 10, 2004.
   In re Northrop Grumman Ship Systems, Inc. f/k/a; Avondale Industries, Inc.; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. Y, No. 557-023; to the Court of Appeal, Fifth Circuit, No. 04-C-931.

Stay denied. Writ denied.


text:
    Joe CLARK, et al. v. TRUS JOIST MACMILLAN, A Limited Partnership, et al.
    No. 2004-CC-2061.
    Supreme Court of Louisiana.
    Aug. 11, 2004.
   In re Trus Joist MacMillan et al.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 70,287; to the Court of Appeal, Third Circuit, No. CW 04-01060.

Stay denied. Writ denied.


text:
    Joe CLARK, et al. v. TRUS JOIST MACMILLAN, A Limited Partnership, et al.
    No. 2004-CC-2062.
    Supreme Court of Louisiana.
    Aug. 11, 2004.
   In re Trus Joist MacMillan, A Limited Partnership; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 70,287-B; to the Court of Appeal, Third Circuit, No. CW 04-01065.

Stay denied. Writ denied.


text:
    Joe CLARK, et al. v. TRUS JOIST MACMILLAN, A Limited Partnership, et al.
    No. 2004-CC-2077.
    Supreme Court of Louisiana.
    Aug. 13, 2004.
   In re Trus Joist MacMillan, A Limited Partnership; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 70,287-B; to the Court of Appeal, Third Circuit, No. CW 04-01067.

Stay denied; writ denied.


text:
    Joe CLARK, et al. v. TRUS JOIST MACMILLAN, A Limited Partnership, et al.
    No. 2004-CC-2078.
    Supreme Court of Louisiana.
    Aug. 13, 2004.
   In re Trus Joist MacMillan, A Limited Partnership; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 70,287 B; to the Court of Appeal, Third Circuit, No. CW 04-01066.

Stay denied; writ denied.


author: | ¡.WHIPPLE, J.

text:
    R.J. v. M.J.
    No. 2003 CU 2676.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Sylvia Roberts, Baton Rouge, Counsel for Plai'ntiff/Appellee, R.J.
    Scott P. Gaspard, Baton Rouge, Counsel for Defendant/Appellant, M. J.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   | ¡.WHIPPLE, J.

In these protracted custody proceedings, the mother, M. J., appeals from a judgment of the trial, court naming the father, R.J., as the domiciliary parent of their minor child, B.J. R.J. filed an answer to the appeal, contending that the trial court erred in setting the custody determination for “review” on its own motion.

For the following reasons, we grant the relief requested in the answer to appeal and reverse the judgment in part. In all other aspects, we affirm.

FACTS AND PROCEDURAL HISTORY

The parties in this matter were married on December 21, 1991 in East Baton Rouge Parish. One child, B.J., was born of this marriage on March 9, 1993. The parties were subsequently divorced on July 8, 1998. Thereafter, the parties consented to a stipulated judgment on November 4, 1998, awarding them joint care, custody, and control of the child, with M. J. designated as the domiciliary parent, subject to alternating weekend and holiday visitation in favor of R.J.

On August 8, 2000, R.J. filed a Rule to Show Cause and for Contempt alleging M.J.: (1) denied him court-ordered visitation with B.J.; (2) failed to provide appropriate clothing for the child; (3) failed to communicate with R.J.; and (4) madé inappropriate statements in the presence of the child. As a result of that rule, the parties entered into a stipulated judgment on February 22, 2001, which provided for communication and notice between the parties via facsimile and for M.J. to provide the child with proper clothing during custodial periods with R.J.

On May 3, 2002, R.J. filed a “Rule to Show Cause Why Custody Should Not Be Modified and for Other Relief,” seeking to be named as the domiciliary parent. In this rule, R.J. alleged at least three incidents had | soccurred in which M.J. denied him custody of the child during his scheduled visitation periods. As additional support for his request to be named domiciliary parent, R.J. alleged M.J. had violated the terms of the previous stipulated judgment and had failed to give appropriate attention to or denied the significant behavioral problems that the child was exhibiting at school.

As a result of this rule, on August 15, 2002, the parties entered into another stipulated judgment wherein they agreed to share equal custody of B.J. on a “fifty-fifty basis.” The judgment also included specific provisions for communication between the parties on all circumstances involving the minor child. The judgment further recited that the trial court would set a trial date as soon as possible for a determination on the following issues: (1) custodial schedule of each of the parties subsequent to December 31, 2002; (2) a modification of the domiciliary parent designation; and (3) child support and any other issues that the parties requested the court to hear and determine.

The matter was eventually set for trial on the merits, and was heard on February 6, 7, and 13, 2003. During the course of the trial, the trial court heard the testimony of numerous factual witnesses, and received numerous exhibits and documentary evidence. The trial court took the matter under advisement and on March 28, 2003, rendered written reasons for judgment. On June 16, 2003, a written judgment in conformity with the court’s reasons was signed by the trial court, finding that: (1) R.J. had proven a material change in circumstances since the rendition of the last judgment on November 4, 1998; (2) that “no evidence of parental fitness [had been] taken in connection with the rendering of the judgment rendered November 4, 1998;” and (3) that the child’s best interest required that R.J. be designated as the domiciliary parent. The judgment further ordered that the parties [4maintain joint custody, and provided a visitation schedule for M.J., consisting of alternating weekly custody of B.J. during the summer months. However, the trial court specifically found that it was not in the child’s best interest that the parties share physical custody of the minor child on an equal basis during the school year, given B.J.’s “academic and behavioral problems [that] are in need of serious attention,” and the court’s conclusion “that [R.J.] is the parent who can best address these needs.”

M.J. appeals the June 16, 2008 judgment of the trial court, asserting as her sole assignment of error that the trial court manifestly erred in finding that R.J. met the requisite burden of proof for a change in custody. R.J. answered the appeal, contending the trial court erred in setting a date for future review of the court’s custody determination to be held at the conclusion of the Fall 2003 school semester.

DISCUSSION

It is a well recognized tenet of Louisiana jurisprudence that an award of child custody is not a tool to regulate human behavior. Cleeton v. Cleeton, 383 So.2d 1231, 1236 (La.1979) (on rehearing). Instead, every child custody case must be reviewed within its own peculiar set of facts. Connelly v. Connelly, 94-0527, p. 4 (La.App. 1st Cir.10/7/94), 644 So.2d 789, 793. The trial judge is in the best position to ascertain the best interest of the child given each unique set of circumstances. Major v. Major, 2002-2131, p. 4 (La.App. 1st Cir.2/14/03), 849 So.2d 547, 550. Accordingly, a trial court’s determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Thompson v. Thompson, 532 So.2d 101, 101 (La.1988) (per curiam); |5 Bercegeay v. Bercegeay, 96-0516, p. 5 (La.App. 1st Cir.2/14/97), 689 So.2d 674, 676.

In the instant case, as in most custody cases, the trial court’s determination was based heavily on factual findings. As an appellate court, we cannot set aside the trial court’s factual findings unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Major, 2002-2131 at p. 5, 849 So.2d at 550.

Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel its own evaluations and inferences are as reasonable. Rosell, 549 So.2d at 844.

In her sole assignment of error, M.J. asserts that the trial court erred in finding that R.J. met the requisite burden of proof as to warrant a modification of the prior custody arrangement.

Louisiana Civil Code article 131 provides that in a proceeding for divorce or thereafter, the paramount consideration in any determination of | (¡child custody is the consideration of the best interest of the child. The burden of proof on a party seeking to modify a prior permanent custody award is dependent on the nature of the original custody award. Evans v. Lungrin, 97-0541, 97-0577, pp. 12-13 (La.2/6/98), 708 So.2d 731, 738. Custody awards are commonly made in two types of decisions. The first is through a stipulated judgment, such as when the parties consent to a custodial arrangement. The second is through a considered decree, wherein the trial court receives evidence of parental fitness to exercise care, custody, and control of a child. D’Aquilla v. D’Aquilla, 2003-2212, p. 4 (La.App. 1st Cir.4/2/04), 879 So.2d 145, 148, citing Evans, 97-0541 at pp. 12-13, 708 So.2d at 738.

Once a considered decree of permanent custody has been rendered by a court, the proponent of the change bears a heavy burden of proving that a change of circumstances has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree, or that harm likely caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

However, in cases such as the instant matter, where the underlying custody decree is a stipulated judgment, and the parties have consented to a custodial arrangement with no evidence as to parental fitness, the heavy burden of proof rule enunciated in Bergeron is inapplicable. Major, 2002-2131 at p. 7, 849 So.2d at 552. Instead, parties seeking modification of a consent decree must show that there has been a material change of circumstances since the original custody decree was entered and that the proposed modification is in the best interest of the child. Major, 2002-2131 at p. 7, 849 So.2d at 552.

|7In the instant case, the underlying custody decree is a stipulated judgment wherein the parties consented to a custodial arrangement with M.J. designated as the primary domiciliary parent. The stipulated judgment was rendered without evidence as to parental fitness; thus, the heavy burden of proof rule enunciated in Bergeron is inapplicable. Nonetheless, in order to modify the existing custody arrangement, R.J. was required to establish that a change in circumstances materially affecting the welfare of the child had occurred since the rendition of the stipulated judgment on November 4, 1998, and, further, that the modification proposed by him is in the best interest of the child.

Ten witnesses testified at trial: W.J., the adult son of R.J. and half brother of B.J.; Ms. B.J., the mother of R.J. and grandmother of B.J.; Deidra LaPlace, B.J.’s lower school principal; A.J., sister of R.J. and aunt of B.J.; John Allen, current husband of M.J. and step-father of B.J.; Michael Burris, a certified public accountant accepted by the court as an expert witness -in accounting; Karvett Queen, a bookkeeper for M.J.’s businesses; Sara Downing, a certified public accountant who prepared tax returns for M.J. and her businesses; and the parties. The trial court also received numerous exhibits pertinent to the custody determination, including B.J.’s school discipline reports, correspondence from the school, report cards, records of a psychological evaluation of the child by Dr. Alicia Pellegrin, a clinical psychologist, and documentation and records in other law suits involving M.J.

Dr. Pellegrin performed a “psyehoedu-cational evaluation” of the child on December 17, 2001. The report stated as the “Presenting Problem” |Rthat B.J. was referred by the Dunham School for psychoe-ducational evaluation to evaluate his school-related behavioral difficulty, including sexual acting-out behaviors. The testing results revealed that B.J. exhibited “adjustment disorder with mixed disturbance of emotions and conduct”; “weakness in written expression”; and “articulation difficulties.”

In addition to specific recommendations to improve B.J.’s speech and writing abilities, Dr. Pellegrin recommended, in part: (1) a course of individual psychotherapy for B.J. to develop better coping, social, and stress management skills, as well as to address issues related to his parents’ divorce; (2) family therapy for B.J. and his parents (both biological and step) to develop better communication, clarify expectations, and improve the general functioning of the family; (3) that B.J.’s parents (both biological and step) participate in a parent-training program, with focuses on improving structure, consistency, and the appropriate use of rewards and consequences for behavior; and (4) that B.J. submit to a thorough speech and language evaluation to inore fully assess B.J.’s articulation difficulties, and if necessary, obtain comprehensive speech and language therapy.

In determining that R. J. met his burden of showing a material change in circumstances since the original custody decree was entered and that the proposed modification is in the best interest of the child, the trial court found that at the time the November 4,1998 stipulated judgment was entered, B.J. was four years of age and R.J.’s employment required that he travel frequently. The trial court further found, “At the present time, [B.J.] is now in fourth grade, and is experiencing behavioral problems at school, and is on the verge of expulsion. Until just recently, [M.J.] has ignored these ^problems” The trial court also included the following footnote: “Although not contained in the record of these proceedings, this Court has received information, confirmed by counsel for both parties, that as of March 27, 2003, [B.J.] was, in fact, expelled from The Dunham School.” The trial court additionally noted:

There was also significant evidence that [M.J.] has denied [R.J.] his custodial periods on several different occasions, has withheld important information from [R.J.] concerning [B.J.], and has made derogatory and obscene statements about [R.J.] in the presence of [B.J.]. Additionally, [M.J.] has had another child, and is in the process of divorcing the father of this child.

In determining the best interest of the child, the trial court considered the twelve non-exclusive relevant factors set forth in LSA-C.C. art. 134. After reviewing those factors, the trial court stated:

This Court has no doubt that both of the parties equally love [B.J.], and that [B.J.] loves his parents. This Court also believes that both parties have the capacity and disposition to give [B.J.] love and affection. However, based on the evidence at trial, this Court finds that [R.J.] is more inclined and capable of giving [B.J.] spiritual guidance and more inclined and capable of continuing [B.J.’s] education and rearing.

ImPrior to the separation of the parties, both [R.J.] and [M.J.] contributed to the care and upbringing of [B.J.], with a significant amount of help from [R.J.’s] mother. After the parties separated, [M.J.] provided most of the care (as [R.J.] only had physical custody every other weekend). However, since August 2002, the parties have been sharing physical custody of [B.J.] on an equal basis, with each of them contributing equally to his upbringing.

After the parties were divorced, [M.J.] remarried, had another child, and is now in the process of obtaining a divorce. [M.J.] lives in the former matrimonial domicile in Woodgate subdivision, which is just off of Highland Road, near LSU. [R. J.] has just recently remarried, and is currently living with his new wife. He lives in a home in Santa Maria subdivision, which is also just off of Highland Road, near the 1-10 interstate.

While residing primarily with his mother, [B.J.] has experienced significant problems at school, due to his behavior and his use of foul language. There was significant evidence indicating that [M.J.] constantly uses foul and obscene language around the home, in the presence of her children, as well as in simple business transactions. On the other hand, [R.J.] presented as a well-mannered, disciplined and professional person, who is morally fit, and he has demonstrated an ability to instill these traits in his children.

[B.J.’s] school history is marked with significant behavioral problems, which were largely ignored by [M.J.]. When [R.J.] learned of these problems, he suggested that [B.J.] receive professional counseling. [M.J.] ignored this suggestion, on the belief that she had the skills necessary to deal with [B.J.] and the problems. However, the evidence indicated that these problems got worse, resulting in the Dunham School mandating that [B.J.] have professional counseling if he was to continue there as a student. It was only at this point in time (when the Dunham School intervened), that [M.J.] finally sought counseling for [B.J.].

Lastly, there was a significant amount of evidence introduced that indicates [M.J.] is reluctant to foster a relationship between [B.J.] and [R.J.]. Several witnesses testified that [M.J.] refused to allow [R.J.] to take [B.J.] to a family reunion trip to Atlanta, despite the fact that it was his custodial weekend. There was also evidence that she refused to allow [R.J.] to have his custodial weekend because she had other plans for the child. Additionally, [M.J.] has made derogatory statements about [R.J.] in the presence of [B.J.]. [M.J.] has also withheld important academic and medical information about [B.J.] from [R.J.]. Based on this evidence, this Court finds that [M.J.] has failed to demonstrate an ability or commitment to facilitate a close and continuing relationship between [B.J.] and [R.J.]. [M.J.], as [B.J.’s] mother, must learn l^that she needs to facilitate a close and continuing relationship between [B.J.] and [R.J.], regardless of her own personal feelings about [R.J.].

The trial court concluded by finding that “it is not feasible nor is it in [B.J.’s] best interest that the parties share physical custody of [B.J.] on an equal basis for the remainder of this school year (Spring 2003), and the Fall 2003 school semester.” However, the court found it “feasible and in [B.J.’s] best interest that the parties share physical custody of [B.J.] on an equal basis during the summer.”

After a thorough review of all of the testimony and evidence presented herein, we find no error in the trial court’s conclusion that R.J. should be designated as the primary domiciliary parent. We note that the primary factor giving rise to the rule filed by R.J. was his legitimate and justified concern about B.J.’s documented behavioral and academic problems at school, leading to his impending expulsion from the Dunham School. The record overwhelmingly demonstrates that B.J.’s escalating behavior of “acting out” sexually and using inappropriate and vulgar language necessitated immediate attention and redirection. The record further establishes that given the testimony and evidence of M.J.’s use of foul language, inadequate level of supervision of B.J. at home, and personal bathing and sleeping habits involving her children, the trial court correctly determined that M.J. was unable to properly address these issues and that the best interest of the child required that R.J. should be designated as B.J.’s domiciliary parent.

Mrs. Deidra LaPlace, B.J.’s school principal, testified as to numerous incidents of inappropriate sexual behavior and misconduct' by the child in and outside of the classroom. The testimony of Mrs. La-Place and R.J. demonstrates that R.J. was more aggressive in attempting to secure much-jneeded12 counseling and therapy for B.J.; he requested that B.J. receive tutoring to improve his academic grades; and he practiced consistent methods of discipline wdth B.J. In contrast, M.J. minimized or denied the seriousness of his document ed problems and instead allowed B.J.’s academic and behavioral problems to “slide” to the point where the child faced eventual expulsion from school. ,

John Allen testified that M.J.’s response to the evaluation or suggestion that B.J. receive therapy was that “all therapists have problems or issues.” In addition to testimony by R.J. that M.J. used foul language on a regular basis and the evidence of profanity used by M.J. on written business correspondence with Jenkins Tile Company, Inc., the evidence shows that on several occasions, Mr. Allen likewise witnessed M.J. using foul language when speaking with B.J. and in speaking,with him in B.J.’s presence. He also recounted various incidents in which B.J. engaged in sexually suggestive or inappropriate behavior, and which M.J. minimized or failed to address. Contrary to M.J.’s claim at trial that she had taken appropriate disciplinary action, he stated he was not aware of any consistent behavior modification program that M.J. was utilizing with B.J. to properly deal with the child’s behavior.

In deciding the custody issues, the trial court further noted M.J.’s unwillingness to foster a loving relationship with B.J. and his father, including her actions in making disparaging remarks against R.J. in the presence of B.J. In addition to the testimony of R.J., these incidents were also described by Mr. Allen, who testified that he witnessed a number of occasions wherein M.J. referred to R.J. as “evil” and said in the child’s presence that R.J. stole money from her. The record also reveals several | ^incidents in which M.J. improperly denied R.J.’s court-awarded visitation with B.J. at her whim.

A thorough review of the testimony presented herein and the record as a whole convinces us that the trial court correctly determined that it is in the best interest of B.J. that R.J. be designated as the domiciliary parent. Moreover, the record is replete with testimony that since the parties entered into the November .4,1998 custody agreement when B.J. was four years of age, significant material changes in the lives and homes of both R.J. and M.J., as well as significant material changes in B.J.’s behavior had occurred, justifying the designation of R.J. as domiciliary parent.

Despite the testimony outlining B.J.’s behavioral problems and comments at school, and the evidence supporting the trial court’s ruling, M.J. argues on appeal that the trial court “committed prejudicial, legal error by placing emphasis on R.J.’s remarriage while simultaneously implying that M.J.’s impending divorce reflects badly on her as a parent.” After a thorough review of the transcript of the trial and the written reasons for judgment, we find that the trial court’s statements that “[M.J.] remarried, had another child, and is now in the process of obtaining a divorce” and that “[R.J.] has just recently remarried, and is currently living with his new wife” were recitations of the parties’ marital status as it existed at the time of the trial. Clearly, the trial court considered all of the evidence presented in this custody dispute, including the permanence, as a family unit, of both the existing and proposed custodial home, as well as all other pertinent factors, without placing any undue or negative emphasis on this particular fact. Moreover, the trial court is specifically mandated to consider the stability and permanence of the parties’ homes as a factor in determining the best interest of the child. See LSA-C.C. art. 134(5).

| uGiven the extensive testimony concerning the acrimonious relationship of the parties herein, the desperate need for immediate attention to this child’s behavioral and academic problems, and M.J.’s inability to properly address these needs, we find the record amply supports the trial court’s determination that a material change in circumstances had occurred and that B.J.’s best interest would be served by designating R.J. as the primary domiciliary parent. Thus, we find no error in the trial court’s determination that the proposed modification was in the best interest of the minor child.

This assignment lacks merit.

ANSWER TO APPEAL

R.J. filed an Answer to Appeal, contending that the portion of the trial court’s judgment limiting its considered custody decree to “the remainder of the school year (Spring 2003) and for the Fall 2003 school semester” and ordering that “[a]t the conclusion of the Fall 2003 school semester, this matter shall be placed back on this Court’s docket for a review” constitute violation of this state’s custody laws. Specifically, R.J. contends that this court-ordered review is in direct contravention of the mandates of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), which require that the party seeking a change in a custody determination meet a heavy burden standard in order to modify a standing considered decree of custody as rendered herein.

Mindful of the mandates in Bergeron as set forth above, we are unaware of (nor have the parties cited) any authority that allows or provides for a trial court to order such “a review date” in a child custody determination ex proprio motu and in the absence of the filing of a petition for a change of custody by one of the parties. Indeed, the purpose of the|1Rheavy burden rule set forth in Bergeron is to avoid extensive and repetitive litigation that could be harmful to the child, to avoid unnecessary changes in the child’s life, and to avoid unnecessary litigation. White v. Fetzer, 97-1266, p. 5 (La.App. 3rd Cir.3/6/98), 707 So.2d 1377, 1380, writ denied, 98-0931 (La.5/15/98), 719 So.2d 466.

We find the portion of the trial court’s judgment setting its custody determination and resulting judgment for a “review” ex proprio motu several months after a full trial involving the testimony of ten witnesses over the course of a three-day trial and subsequent rendition of a considered decree to be in direct contravention of the heavy burden rule set forth in Bergeron and contrary to the best interest of the child. Absent any statutory or jurisprudential authority for such a procedure, we must conclude the trial court erred in doing so.

Finding merit to the claims set forth in R.J.’s Answer to Appeal, we reverse the portion of the June 16, 2003 judgment wherein the trial court, on its own motion, set this matter for “review” on its docket at the conclusion of the Fall 2003 school semester.

CONCLUSION

For the above reasons, the June 16, 2003 judgment of the trial court maintaining joint custody of the minor child between the parties and designating R.J. as the domiciliary parent of B.J. is affirmed, except with respect to the provision setting the matter for further review.

|1fiThe Answer to Appeal filed by R.J. is hereby granted and the portion of the June 16, 2003 judgment setting the trial court’s custody determination for “review” on the trial court’s own motion is reversed.

All costs associated are assessed against appellant, M.J.

AFFIRMED IN PART AND REVERSED IN PART; ANSWER TO APPEAL GRANTED.

      . While this judgment and previous judgments also addressed child support, the support issues are not before us for review in this appeal.

      . As a procedural fact, we note that the trial of this matter lasted three days and that the record includes multiple volumes and contains in excess of five hundred pages of testimony alone.

      . Copies of correspondence between M.J. and Jenkins Tile Company, Inc. and a petition filed against M.J. by Jenkins Tile Company, Inc. were introduced along with pleadings filed in connection with M.J.'s impending divorce from John Allen.

      . Notably, in response, M J. minimized these findings and testified that Dr. Pellegrin was "incorrect” in that B.J. did not have a speech impediment and never has had one.

      . The relevant factors in determining the best interest of the child as set forth in LSA-C.C. art. 134 are:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.

        (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.

      . While we realize that this issue may now be moot, given the specified date of the "review” hearing, and the delays for docketing and decision of this appeal, we nonetheless note the legal error by the trial court herein insofar as the trial court may order such future "reviews.”


author: I «THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Mustafa MUHAMMAD.
    No. 03-KA-419.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry Boudreaux, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   I «THOMAS F. DALEY, Judge.

The defendant was convicted of 17 counts of access device fraud in violation of La. R.S. 14:70.4. He was adjudicated a multiple offender and sentenced to life in prison. In an unpublished opinion, this court affirmed his conviction of violation of La. R.S. 14:70.4, but set aside the multiple offender adjudication because of an error patent. On remand, the trial court adjudicated the defendant a multiple offender based on evidence submitted in the first habitual offender hearing. This Court found that to be reversible error in State v. Muhammad, 02-338 (La.App. 5 Cir. 10/16/02), 831 So.2d 358. Upon remand, the trial court held another hearing on the multiple offender indictment and the defendant was adjudicated a multiple offender and sentenced to life in prison. This Court vacated that sentence finding that the multiple offender proceedings had to be completed prior to the defendant’s completion of his sentence on the underlying offense. State v. Muhammad, 03-419 (La. App. 5 Cir. 9/30/03), 857 So.2d 1223. The Supreme Court granted the State’s writ of certiorari and held that there is no “bright line rule” for determining when multiple offender proceedings must be |sbrought, overruling its previous opinions of State ex rel. Glynn v. Blackburn, 485 So.2d 926 (La.1986) (per curiam) and State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974). The Supreme Court reinstated defendant’s adjudication and life sentence as a fourth felony offender and remanded to this Court for consideration of the other Assignments of Error raised in his last appeal to this Court.

ASSIGNMENTS OF ERROR:

On appeal, defendant complains that the State did not sufficiently prove the predicate offenses alleged in the habitual offender Bill of Information. The State responds that the evidence was sufficient to prove the predicate offenses.

To prove that defendant is a habitual offender, the State must establish the existence of the prior felony convictions, and that defendant is the same person convicted of those offenses. State v. Mims, 00-1507, p. 4 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 766, writ denied, 02-0466 (La.2/7/03), 836 So.2d 88. The State may establish this by various means, such as the testimony of witnesses to prior offenses, expert testimony matching fingerprints of the accused with those in the record of prior proceedings, or photographs contained in a duly authenticated record. State v. Manson, 01-159, p. 19 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 763.

When the State relies on a prior conviction that is based on a guilty plea to prove the defendant’s habitual offender status, it has the burden of proving the existence of that guilty plea, and that the defendant was represented by counsel. If the State meets that burden, then the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or of a procedural irregularity. If the defendant meets this burden, the burden shifts back to the State to prove the constitutionality of the plea. The State can meet this burden by Uproducing a “perfect” transcript of the guilty plea colloquy. A “perfect” transcript is one that reflects a voluntary, informed, and express waiver of the constitutional rights expressed in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); the rights to trial by jury and confrontation, and the privilege against self-incrimination. Anything less than a “perfect” transcript, e.g., a guilty plea form, minute entry, or imperfect transcript, must be weighed by the trial judge, who makes a determination as to whether the defendant’s prior plea was knowing and voluntary. State v. Shelton, 621 So.2d 769 (La.1993).

The amended habitual offender bill alleged three prior felony convictions:

(1) Case number 2273654-4, Department Number 6 of the Superior Court of the State of California, County of Fresno. Defendant violated Section 459 of the California Penal Code, Second Degree Burglary, a felony, and pled guilty as charged on May 3, 1978. He was sentenced on January 5, 1982 to three years at hard labor.
(2) Case number CRS-S9-357-01 of the docket of the United States District Court for the Eastern District of California. Defendant violated Title 18 United States Code, Section 2113(a), bank robbery, a felony, and pled guilty as charged on May 1, 1990. Defendant was sentenced on May 1, 1990 to 63 months at hard labor.
(3) Case number CR-83-305-ER of the docket of the United States District Court for the Central District of California. Defendant violated Title 18 United States Code, Section 2113(a), robbery of a savings and loan, a felony, and pled guilty as charged on July 29, 1983. Defendant was sentenced the same day to serve ten years at hard labor.

At the motion hearing on December 17, 2002, defendant did not challenge the sufficiency of the State’s proof with regard to the 1978 conviction. A review of the evidence shows that the State provided sufficient proof as to that conviction.

As to the 1983 predicate conviction, defendant argued below that the State did not provide sufficient proof of identity. Defendant also argued that the State did not prove a knowing and voluntary guilty plea, as it did not produce a Boykin transcript. The State countered that it had met its initial burden under Shelton, and that the defense had not met its burden of showing some affirmative evidence of | ¡¡infringement of his rights, or of procedural irregularity. On appeal, defendant asserts that proof as to the 1983 predicate conviction was insufficient in that the State failed to produce a Boykin transcript, that it did not prove he was represented by counsel at the time of that guilty plea, and that the State’s exhibits did not show a sentencing range.

In support of the alleged 1983 conviction for robbery of a savings and loan, the State offered State’s Exhibit 4, in glo-bo; and State’s Exhibit 4A, in globo. Exhibit 4 is a certified copy of a set of FBI fingerprints labeled with the name Johnathan Williams. Williams’ aliases are listed as Larry Reese and Hasson Fateen Mus-tafa. Exhibit 4A includes a grand jury indictment in case number CR-83-305-ER in the United States District Court for the Central District of California, charging Johnathan Williams a/k/a Hasson Fateen Mustafa with two counts of robbery of a savings and loan; a Judgment and Probation/Commitment Order dated July 29, 1983, indicating defendant pled guilty as charged, and was sentenced to ten years as to each count, the sentences to run concurrently; and a document entitled Criminal Minutes — Sentencing and Judgment. No guilty plea transcript is included in the exhibit. The trial court found the evidence was sufficient proof as to that conviction. However, we find the State failed to meet its initial burden of proof under Shelton in the 1983 predicate offense.

There is nothing in the court minutes to show that defendant was advised of his Boykin rights at the time of his guilty plea, and that he knowingly and voluntarily waived those rights. There is a document in Exhibit 4A entitled Statement of Defendant’s Constitutional Rights. It contains an explanation of the three Boykin rights, and bears the signature “Hason F. Mustafa.” This document was given to defendant at the time of his arraignment, and not at the time he entered his guilty plea. Defendant indicated on the document that he was not represented by an attorney at that time.

1 fiWe find that the State failed to meet its initial burden of proof with respect to proof of identity. The State was required not only to link the FBI fingerprint card to defendant, but to link the fingerprint card to the materials in Exhibit 4A and, thus, to the 1983 offense. The small amount of information linking defendant to the 1983 offense is insufficient to satisfy the State’s burden. This Court has found sufficient linkage where the State connects the fingerprint card to the arrest register and/or the Bill of Information by way of matching police item numbers, Bureau of Identification numbers, social security numbers, addresses, employers, and docket numbers. See, State v. Breaux, 00-236, pp. 8-9 (La.App. 5 Cir. 8/29/00), 767 So.2d 904, 909-910, writ denied, 00-2874 (La.6/29/01), 794 So.2d 808.

Neither Exhibit 4 nor Exhibit 4A contains the name Mustafa Muhammad. Both exhibits bear the names Johnathan Williams and Hason Fateen Mustafa. Additionally, both exhibits show that the charged offense is robbery. The fingerprint card gives the date of arrest as 4/6/83, and the Case Summary contained in Exhibit 4A gives the same date.

There is a discrepancy in the birth dates given in these exhibits. The defendant’s birth date is given in Exhibit 4 as 4/1/60, whereas in Exhibit 4A, a document entitled Case Summary gives the defendant’s date of birth as 4/1/62. Another document in Exhibit 4A, a Report Commencing Criminal Action, gives a birth date of 4/1/63. Defendant’s birth date, as provided in the amended habitual offender bill in the instant case, is March 3, 1958. A social security number is given in Exhibit 4, but none is found in Exhibit 4A with which to compare it.

Although one of defendant’s alias names appears in the Exhibit 4A documents, the date of arrest is the same as on the fingerprint card, and the charge is the same, this is insufficient to link this defendant to that predicate offense.

17Pefendant further argues that the State provided insufficient proof as to the 1989 predicate in that it failed to provide court minutes or a Boykin transcript from the guilty plea. In support of the 1989 robbery conviction, case number CRS 89-357-01, the State produced State’s Exhibit 3, a set of FBI fingerprints; and State’s Exhibit 3A in globo, a federal grand jury indictment and attachments charging Hassan Fateen Mustafa' with bank robbery. McKenzie testified that he compared the fingerprints in State’s Exhibit 3 and State’s Exhibit 6, and that, in his opinion, they were made by the same person, defendant Muhammad.

Exhibit 3A contains a sentencing form indicating defendant was represented by counsel and entered a guilty plea. In Shelton, supra, the Supreme Court stated in dicta that in federal and non-Louisiana convictions based on guilty pleas sought to be used to enhance a defendant’s sentence as a habitual offender, the State is required only to prove the conviction by a plea of guilty with representation by counsel. The defendant then has the burden of proving that he did not waive his constitutional rights in making the plea. While the defendant claims there was no knowing and intelligent waiver of his rights in entering this guilty plea, he has presented nothing to support his claim. Defendant had the right to testify concerning the circumstances surrounding the taking of his guilty plea in order to meet his burden of proving the plea was invalid. Id. at 779 footnote 8. Instead, defendant presented no evidence that the plea was invalid.

Although we find the linkage between the fingerprint card (Exhibit 3) and the documentation in Exhibit 3A to be scant, it is sufficient to link the defendant to this offense. The name on the finger print card is Hassan Fateen Mustafa, one of defendant’s known aliases. The offense, bank robbery, is listed on both the fingerprint card and the court documents in Exhibit 3A. The defendant’s Social Security number is the same in Exhibits 3 and 3A.

| sBased on the foregoing, we find that the State provided sufficient evidence to support only two prior convictions, the one obtained in 1978 and the one obtained in 1989. We, therefore, amend the trial court finding that defendant committed three prior felonies and find for the purpose of habitual offender sentencing the defendant is adjudicated a third offender.

In his third Assignment of Error raised on his last appeal to this court, relying on State v. Uqdah, 613 So.2d 1113, 1114 (La.App. 5 Cir.1993), defendant argues that error patent was committed because no multiple bill was filed into this record, thus making the latest habitual offender sentence invalid.

In Uqdah, defendant was sentenced under the habitual offender law to eight and one-half years at hard labor. In an error patent review, this Court noted that the record did not contain a Bill of Information charging defendant as a multiple offender. This Court found that, since there was no multiple bill, the prior conviction could not be used to enhance the sentence for the present conviction. We vacated the sentence and remanded to the trial court for resentencing.

In the instant case, as the State noted in its brief, the amended multiple bill filed on March 27, 2001 is contained in record number 02-KA-338, which is an exhibit of the record in this case, number 03-KA-419. As such, it appears that Uqdah is distinguishable from this case and, therefore, is inapplicable.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals errors patent in this case.

A multiple offender Bill of Information was filed against defendant. When a multiple offender Bill of Information is filed, LSA-R.S. 15:529.1(D)(1)(a) provides that the trial court shall order the defendant to appear before it and shall inform him of the allegation contained in the Bill of Information and of his right to be tried as to the truth thereof according to law, and shall require the offender to say | nwhether the allegations are true. The statute also requires that the court advise the defendant of his right to remain silent.

In the instant case, the trial court failed to advise defendant of his multiple bill rights on the record. However, in State v. Dearmas, 606 So.2d 567, 569 (La.App. 5 Cir.1992), overruled on other grounds in State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 131, this Court held that the failure of the trial court to advise the defendant of his right to a trial and to remain silent was harmless error where the multiple offender status was established by competent evidence offered by the State at the hearing, rather than by admission of the defendant.

In the instant case, defendant denied the allegations of the multiple bill, and the State presented competent evidence at a hearing to establish defendant’s multiple offender status. As such, we find that the trial court’s failure to advise defendant of the specific allegations against him and of his right to be tried and to remain silent was harmless error. See, State v. Brooks, 00-953, p. 6 (La.App. 5 Cir. 2/11/03), 841 So.2d 854; State v. Ruffin, 02-798 (La. App. 5 Cir. 12/30/02), 836 So.2d 625; State v. Knight, 01-881 (La.App. 5 Cir. 2/13/02), 811 So.2d 947, 949; State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 583.

CONCLUSION:

The State presented sufficient evidence to show that the defendant had two prior felony convictions. Thus, we find the defendant to be a third felony offender. Under the existing law at the time of defendant’s current offense a life sentence was mandatory for a third felony offender when one of the predicate crimes was a crime of violence, therefore, the defendant’s habitual adjudication is amended, but his life sentence is affirmed.

MULTIPLE OFFENDER ADJUDICATION AMENDED; SENTENCE AFFIRMED.