author: | KIMBALL, Justice. hWEIMER, J., h JOHNSON, Justice

text:
    STATE of Louisiana v. Danny PARKER.
    No. 2003-K-0924.
    Supreme Court of Louisiana.
    April 14, 2004.
    Charles C. Foti, Jr., Atty. Gen., Walter P. Reed, District Atty., Dorothy A. Pen-dergast, Metairie, Counsel for Applicant.
    William R. Campbell, Jr., New Orleans, Frank Sloan, Covington, Counsel for Respondent.
    Ellis P. Adams, Jr., Counsel for amicus curiae Louisiana District Attorney’s Ass’n.
   | KIMBALL, Justice.

The issue presented in this case is whether the ameliorative changes in Louisiana’s habitual offender law, La. R.S. 15:529.1, apply only to those cases in which the defendant commits the charged crime after the effective date of the amending act or whether they can be applied to a defendant who is adjudicated a habitual offender after the effective date of the amending act, but whose crime was committed prior to the effective date of the amending act. Based on the language of the amending act, this court’s well-settled jurisprudence, and the policy considerations involved, we conclude that the applicable habitual offender provisions are those that were in effect at the time of the commission of the charged offense. Accordingly, we reverse that portion of the court of appeal’s judgment to the contrary.

Facts and Procedural History

Defendant, Danny Parker, was charged by bill of information in count one with possession of a Schedule III controlled dangerous substance (Dihydrocodeinone) in violation of La. R.S. 40:968(C), and in count two with possession of a Schedule IV | ^controlled dangerous substance (Diazep-am) in violation of La. R.S. 40:969(C). The alleged offense occurred on March 25, 1997. Defendant pled not guilty to both counts, and was subsequently tried and convicted on both counts by a six-person jury.

Thereafter, the State filed a habitual offender bill, alleging with respect to count two that defendant was a third felony offender because he had previously pled guilty to aggravated battery in violation of La. R.S. 14:34 and he was previously convicted for distribution of a Schedule II controlled dangerous substance (cocaine) in violation of La. R.S. 40:967. Following a hearing, the district court adjudicated defendant as a third felony offender. On August 3, 1999, defendant was sentenced to concurrent sentences of five years at hard labor on count one and life imprisonment without benefit of parole, probation, or suspension of sentence as a third felony offender on count two.

Defendant filed an appeal, and, on November 9, 2001, the court of appeal affirmed the convictions on both counts and the sentence on count one, but vacated the habitual offender adjudication and sentence on count two. The matter was remanded to the district court for further proceedings. State v. Parker, 00-2861 (La.App. 1 Cir. 11/9/01), 818 So.2d 85.

On March 4, 2002, following a hearing on remand, the district court again adjudicated defendant a third felony offender and sentenced him to life imprisonment without benefit of parole, probation, or suspension of sentence pursuant to the provisions of La. R.S. 15:529.1(A)(l)(b)(ii) in effect at the time of the commission of the crime. Defendant objected to the sentence, arguing that it was excessive in light |3of changes in the habitual offender law that became effective after the time of the commission of the third felony offense and conviction, but before his re-adjudication as a habitual offender.

Defendant again appealed the habitual offender adjudication and sentence, and the court of appeal affirmed the habitual offender adjudication. State v. Parker, 02-1477 (La.App. 1 Cir. 3/5/03), 845 So.2d 546. However, the court of appeal vacated the habitual offender sentence because it concluded that defendant should have been sentenced according to the amended provisions of the habitual offender law that were in effect when he was properly adjudicated a third felony offender by the district court. Id. Although the court acknowledged that State v. Sugasti 01-3407 (La.6/21/02), 820 So.2d 518, reiterated this court’s consistent holding that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted defendant must suffer, the majority distinguished the instant situation on several grounds. The majority noted that the habitual offender law, as amended after defendant’s commission of the crime, but before he was properly adjudicated a third felony offender and sentenced therefor, is a penalty enhancement statute rather than a statute that imposes a sentence for a particular offense. The court of appeal also distinguished Sugasti on the basis of its determination that “a defendant is not a habitual offender simply by virtue of committing a third felony offense.” Parker, 02-1477 at p. 5, 845 So.2d at 550. Since defendant is not a habitual offender subject to the punishment prescribed by the law until the district court so finds, the court of appeal reasoned that the amended provisions should be applicable to a defendant found to be a habitual offender after the effective date of the amendment. In reaching this conclusion, the court of appeal focused on La. R.S. 15:529.1(D)(3), which includes the language “[wjhen the judge finds.” Thus, the majority vacated the ^sentence imposed and remanded the case to the district court for re-sentencing.

We granted the State’s request for cer-tiorari to consider whether defendant should be sentenced according to the habitual offender law in effect at the time of the commission of the offense or that in effect at the time of the habitual offender adjudication and sentencing. State v. Parker, 03-0924 (La.12/19/03), 864 So.2d 608.

Discussion

In its sole assignment of error, the State argues that the court of appeal erred when it departed from this court’s jurisprudence and ruled that defendant should be sentenced according to the new provisions of the habitual offender law in effect at the time of the habitual offender adjudication rather than those in effect at the time of the commission of the predicate felony. The State points out that the habitual offender law does not establish an independent crime, but prescribes an enhanced penalty for certain subsequent offenses. The State also asserts that the amending language itself mandates that the new provisions be applied prospectively only. Defendant, on the other hand, asserts that the penalties prescribed by the multiple offender law apply only after there has been a judicial determination that a convicted person is, in fact, a habitual offender. Thus, defendant argues, the date of the adjudication as a habitual offender must dictate the applicable habitual offender sentencing provisions.

The relevant habitual offender statute in effect at the time defendant committed the crime at issue and at the time of his conviction, La. R.S. 15:529.1, provided in pertinent part:

A. (1) Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall | ñbe punished as follows:
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(ü) If the third felony or either of the two prior felonies is a felony defined as a crime of violence under La. R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

(Emphasis added). This version of La. R.S. 15:529.1 was in effect at the time defendant committed the crime, at the time he was convicted, and at the time he was first adjudicated a third felony offender and sentenced accordingly. As explained above, however, this initial adjudication was vacated by the court of appeal and the matter was remanded to the district court because the court of appeal found that the State had failed to present adequate proof that defendant had been represented by counsel when he entered a guilty plea to one of the prior offenses alleged in the habitual offender bill and that defendant’s guilty plea was informed and voluntary and made with an articulated waiver of his Boykin rights. Parker, 00-2861 at p. 8, 818 So.2d at 90.

On remand, defendant was again adjudicated a third felony offender and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence on March 4, 2002. By this time, Act No. 403 of 2001, which included an amendment to those provisions of La. R.S. 15:529.1 applicable to the instant case, had been enacted by the legislature in an attempt to reduce incarceration rates for non-lviolentr, offenders and to ease the financial burden on the state. State v. Sugasti 01-3407, p. 3 (La.6/21/02), 820 So.2d 518, 520. Effective June 15, 2001, Act 403 amended La. R.S. 15:529.1 to provide, in pertinent part:

A. (1) Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(ii) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13) ... or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

(Emphasis added). Act 403 explicitly provides that “[t]he provisions of this Act shall only have prospective effect.” 2001 La. Acts No. 403, § 6.

The ameliorative changes made to La. R.S. 15:529.1(A)(l)(b)(ii) by Act 403, if applicable, drastically reduce defendant’s sentencing exposure. Under the version of La. R.S. 15:529.1 in effect at the time of the commission of the offense, it was mandatory that a defendant be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence, if only one of the felonies committed by defendant was defined as a crime of violence, a particular sex offense, or a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years, or was any other crime punishable by imprisonment for more than twelve years. Pursuant to this version of the statute, |7defendant’s prior felony conviction for aggravated battery, which is defined as a crime of violence under La. R.S. 14:2(13), would suffice for imposition of a life sentence. In contrast, under the amended version of La. R.S. 15:529.1(A)(l)(b)(ii), each of the three felonies committed by a defendant must be defined as a crime of violence under La. R.S. 14:2(13), certain enumerated sex offenses, or a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or be any other crime punishable by imprisonment for twelve years or more before defendant will be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. Defendant’s third felony does not meet any of the requirements of La. R.S. 15:529.1(A)(l)(b)(ii) as amended by Act 403. Therefore, under the amended habitual offender law, the applicable sentencing provision for defendant would be that contained in La. R.S. 15:529.1(A)(l)(b)(i). Consequently, if the amended version of the habitual offender law is applicable to defendant’s adjudication as a third felony offender, defendant would be exposed to a maximum term of only ten years imprisonment at hard labor.

This court faced a similar issue years ago when it considered comparable ameliorative changes to the habitual offender law in State v. Dreaux, 205 La. 387, 17 So.2d 559 (1944). In Dreaux, the defendant committed the crime of assault and robbery on July 24, 1942. The robbery was his second felony offense, and at that time 1928 La. Acts 15 provided that a second offender “must be sentenced to imprisonment for a term not less than the longest term, nor more than twice the longest term, prescribed for a first conviction.” On July 29, 1942, five days after commission of the offense, 1942 La. Acts 45 went into effect and provided that a second offender |s“must be sentenced to imprisonment for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction.” The defendant in Dreaux was thereafter convicted of the charged offense on September 24, 1942, and, in November 1942, he was adjudicated and sentenced as a second offender under 1928 La. Acts 15, which was the version of the law in effect at the time of the commission of the offense, to a term of not less than fourteen years nor more than twenty-eight years at hard labor in the State Penitentiary. The defendant then filed a motion to set aside the alleged illegal sentence on grounds that because he had been adjudicated and sentenced as a habitual offender after the effective date of the less severe provisions of 1942 La. Acts 45, he should have received benefit of the ameliorative change in the law. The district court denied the motion.

On appeal, this court began by stating that the resolution of the issue of which version of the habitual offender law to apply depends upon the date the defendant became a second offender. We noted that the habitual offender law does not establish a crime, but merely prescribes a heavier penalty for the repetition of criminal conduct by a person who has been previously convicted of a felony. We then reasoned as follows:

The heavier or enhanced punishment being for the new crime only is necessarily incurred at the time the defendant committed the second felony, although the legal proceedings under which his guilt was formally established were had subsequently. Briefly, his own acts and conduct which constitute a violation of the criminal law make him a second offender as of that date.... The sentence of the court shows that he was punished for the crime he committed. The proceeding under either of the Habitual Criminal Statutes in question is merely the legal procedure through which the State must establish that the defendant is a second offender. Necessarily, the State must prove that the accused had been previously convicted twice of a felony before he can be punished as a second offender.

|9Dreaux, 205 La. at 391-92, 17 So.2d at 560. We went on to note that if we were to find a defendant’s status as a second offender was fixed as of any date other than the commission of the offense, “it would be within the power of the district attorneys and the Attorney General, by delaying the filing of the charges and prosecution of the case, to fix the accused’s status as a second offender at practically any time he desired.” Id. at 392, 17 So.2d at 560. Thus, we also found public policy dictated that defendant’s habitual offender status be fixed as of the date of the commission of the crime since this allows defendant’s own act to establish his status rather than leaving the matter in the discretion of government attorneys. This court rejected the defendant’s claim that the legislature’s enactment of a less severe penalty established a new policy of more leniency towards habitual offenders on grounds that such arguments of policy and equity address themselves to the Board of Pardons. Id. at 396, 17 So.2d at 562. In light of the above analysis, we concluded that the defendant became a second offender on the date he committed the predicate crime and was therefore subject to the punishment provided for by the law as it existed on that date. Id.

Following Dreaux, this court has consistently held that habitual offender proceedings do not charge a separate crime but merely constitute ancillary sentencing proceedings such that the punishment for a new conviction is enhanced. See State v. Dorthey, 623 So.2d 1276, 1278-79 (La.1993); State v. Walker, 416 So.2d 534, 536 (La.1982); State v. Williams, 326 So.2d 815, 818 (La.1976). Additionally, it is generally settled that the law in effect at the time of the commission of the offense is |indeterminative of the penalty which is to be imposed upon the convicted accused. See State v. Narcisse, 426 So.2d 118, 130 (La.1983). State v. Wright, 384 So.2d 399, 401 (La.1980); State v. Gros, 205 La. 935, 938, 18 So.2d 507, 507 (1944), cert. denied, 326 U.S. 766, 66 S.Ct. 170, 90 L.Ed. 462 (1945). Finally, “[t]he mere fact that a statute may be subsequently amended, after the commission of the crime, so as to modify or lessen the possible penalty to be imposed, does not extinguish liability for the offense committed under the former statute.” Narcisse, 426 So.2d at 130.

We recently reaffirmed these principles in State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, a case wherein we considered what, if any, retroactive effect an ameliorative amendment to La. R.S. 40:966(C) had on narcotics violations committed before its effective date. There, this court considered the 2001 amendment to La. R.S. 40;966(C)(1), which was also enacted pursuant to the provisions of Act 403, that deleted the language “without benefit of probation or suspension of sentence” from the penalty provision at issue, thereby making persons convicted of heroin possession eligible for a suspended sentence. In Sugasti, the defendant committed the crime of possession of heroin in violation of La. R.S. 40:966(C) on September 5, 1998. On June 21, 2001, the defendant entered a negotiated plea of guilty as charged to three offenses, including possession of heroin, and the district court subsequently ordered defendant’s sentences to be suspended. The State objected to the imposition of suspended sentences, arguing that Act 403, which allowed for a suspended sentence for a violation of La. R.S. 40:966(C), did not apply to drug offenses committed in 1998 prior to the amendment of the statute. In considering whether defendant was entitled to suspended sentences, we cited our earlier jurisprudence holding that an ameliorative change in the penalty provision of a statute which occurs after the commission of the offense is inapplicable and that the Intrial judge should not derogate from the penalty provision in effect at the time of the commission of the offense. Sugasti, 01-3407 at pp. 4-5, 820 So.2d at 520-21. We also noted that Act 403 specifically provides that its provisions shall have prospective effect only, commenting that had the legislature intended the more lenient sentencing provisions to be immediately effective, it could have signified that intent in the Act. Id. at p. 5, 820 So.2d at 521. Additionally, we reiterated the strong presumption against retroactivity of statutes. Finally, we found that policy reasons militated against holding that the amendment applied to anyone sentenced after its effective date because to do so would encourage defendants to continually delay prosecution in the hope that a more lenient sentence would be enacted. We also found it would be grossly unfair to two defendants who committed the same crime on the same day to be sentenced under different penalties if one defendant should successfully delay his punishment until after the benefits of a reduced penalty go into effect. Accordingly, we concluded that the ameliorative provision to La. R.S. 40:966(C)(1) made by Act 403 did not apply when the offense was committed prior to its effective date.

In a nearly identical case handed down the same day, State v. Mayeux, 01-3408 (La.6/21/02), 820 So.2d 524, the defendant pled guilty to possession of |1?heroin, a crime which occurred prior to the effective date of Act 403, and the district court issued a suspended sentence for the violation of La. R.S. 40:966(C). For the reasons assigned in Sugasti, we affirmed the court of appeal’s order to set aside the suspended sentence as illegal.

We again considered the issue of the applicability of Act 403 to crimes committed before its effective date in State v. Barnes, 02-2059 (La.4/4/03), 845 So.2d 354. Although Barnes is merely a per curiam opinion decided by a four-vote majority, we specifically reaffirmed the principles announced in the jurisprudence discussed above, stating:

Under the rule set out in Louisiana jurisprudence, the changes mandated by 2001 La. Acts 403 do not apply to sentences imposed for crimes committed before the [Ajct’s effective date. Operation of this rule extends to habitual offender sentences imposed pursuant to R.S. 15:529.1.

Id. (internal citations omitted).

In concluding that the defendant should receive the benefit of the more lenient sentencing provisions provided by Act 403, the court of appeal in this case focused on the trial-like aspect of habitual offender proceedings held pursuant to La. R.S. 15:529.1, in which the State must file a bill of information charging the defendant as a habitual offender and thereafter prove beyond a reasonable doubt any allegation of fact, unless the defendant stipulates to the habitual offender bill, and in which the trial court must make an express finding with regard to the defendant’s habitual offender status as a prerequisite to enhanced sentencing. Parker, 02-1477 at pp. 5-7, 845_|j¡So.2d at 550-51. See La. R.S. 15:529.1(D). Given this statutory mechanism for adjudicating and sentencing a defendant as a habitual offender, the court of appeal took for granted that “a defendant is not a habitual offender simply by virtue of committing a third felony offense .... Unless and until a separate bill of information is filed by the district attorney after the defendant’s felony conviction, there will never be a finding of habitual offender status to justify the enhanced penalty pursuant to the statute.” Id. at p. 5, 845 So.2d at 550. Citing La. R.S. 15:529.1(D)(3), the court found it “very clear” that defendant is subject to the enhanced penalties provided in La. R.S. 15:529.1 only when defendant acknowledges his status as a habitual offender or “when the judge finds” he had been convicted of a prior felony or felonies. Id. at p. 6, 845 So.2d at 550. The court stated, “Until that finding or acknowledgment occurs, the defendant is not a habitual offender and, therefore, is not subject to the punishment prescribed” in the habitual offender law. Id. From this premise, the court of appeal concluded that in cases in which the habitual offender hearing is conducted after the effective date of Act 403, the defendant must be subject to the punishment prescribed as of that date, not under provisions pre-dating the adjudication. Id. In the view of the court of appeal, this approach “fully accords with the legislature’s statement that the amendments to LSA-R.S. 15:529.1 in 2001 La. Acts No. 403, § 6 ‘shall only have prospective effect.’ ” Id. at p. 6, 845 So.2d at 550-51.

In reaching this determination, the court of appeal distinguished this court’s decision in Sugasti on the basis that the present habitual offender situation, in which a combination of convictions merge to require enhanced punishment, does not involve a sentence for a particular offense like the one addressed in Sugasti. While it found the legal principles on which Su-gasti was based “unassailable” when applied to the individual crimes addressed in Act 403, the court of appeal found the instant case isj^more analogous to State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, which was rendered on the same day as the Sugasti decision.

Mayeux involved a violation of La. R.S. 14:98(E), driving while intoxicated, fourth offense (fourth DWI) that occurred on February 22, 2000. Effective August 15, 2001, the legislature enacted Act 1163, which changed the way the offender is to serve the sentence imposed by the court. On September 27, 2001, the defendant pled guilty and was sentenced pursuant to La. R.S. 14:98(E) as it existed at the time of the commission of the offense.

Under the law as it existed at the time of the offense, a fourth DWI offender faced a penalty of not less than ten years at hard labor and not more than thirty years at hard labor, at least two years of which ran without benefit of suspension of sentence, parole or probation. Under the amended version of the law, the fourth DWI offender faces only sixty days of mandatory jail time and the court is required to suspend the remaining portion of the sentence and order the offender to undergo an evaluation to determine the nature and extent of his substance abuse disorder. In this case, we specifically noted that Act 1163 contained no statement regarding the retroactivity of its provisions. However, we found the amended version should apply to the defendant because the statute providing for the penalty specifically stated that the defendant shall be punished for a specific term “upon conviction,” because the amended version of the statute contained a specific statement of legislative purpose that indicated its intention to embrace treatment measures in preference to incarceration, and because the amending legislation allowed home incarceration for those previously convicted. Although we acknowledged the general rule that the law in effect at the time of the commission of the offense is determinative of the penalty the convicted accused must receive, we found the general rule must yield in cases such [15as this where the specific statutory provisions of the amended law required the applicable law to be that in effect at the time of defendant’s conviction. In Sugasti, we distinguished the provisions of Act 403 from those contained in Act 1163, upon which our decision in Mayeux was based, on grounds that Act 1163 contained specific language that negated the general rule and because Act 1163 did not include a statement that its provisions were to have prospective effect only.

We find the court of appeal erred when it distinguished Sugasti from the instant case and failed to apply the settled principles enunciated in the Sugasti decision. It was established long ago in Dreaux that a defendant becomes a habitual offender on the date he commits the charged crime. The court of appeal’s opinion, however, rests on a premise — that a defendant is not a habitual offender until he is formally adjudicated such an offender — that was long ago discarded by this court in the context of statutes that possessed the same trial-like aspects as the current habitual offender law found in La. R.S. 15:529.1. While it is true La. R.S. 15:529.1(D)(3) provides that defendant shall be sentenced as a habitual offender only “[w]hen the judge finds” that he has been convicted of a prior felony or felonies, this language merely references the determination required to be made by the judge at the conclusion of the habitual offender hearing. A defendant is not convicted of being a habitual offender. Rather, a defendant is adjudicated a habitual offender as a result of prior felony convictions. The sentence to be imposed following a habitual offender adjudication is simply an enhanced penalty for the underlying conviction.

We also conclude that the court of appeal erred in relying on our decision in Mayeux as support for its determination that defendant should be sentenced according to the version of La. R.S. 15:529.1(A)(l)(b)(ii) that was in effect at the time he was properly adjudicated a habitual offender. Given the traditional principles hr,reaffirmed in Sugasti, our decision in Mayeux is limited to the peculiar language used in the statutory provisions at issue, the absence of an expressed intent regarding retroactivity, the unusually strong and explicit declaration of legislative intent to change the focus of the war against drunken driving from punishment to treatment and rehabilitation in the case of chronic offenders, and the fact that the statute’s ameliorative effects may be applied to those already convicted.

After consideration of the language of Act 408, this court’s well-settled jurisprudence, and the policies involved, we conclude that defendant should be sentenced in accord with the version of La. R.S. 15:529.1 in effect at the time of the commission of the charged offense. The general rule long applied in this state is that the law in effect at the time of the commission of the offense determines the penalty to be applied to the convicted accused. As previously explained, defendant became a third felony offender on the date he committed the underlying felony offense. He was therefore subject to the punishment provided for by the law as it existed on that date; that is, defendant should be punished pursuant to the provisions of La. R.S. 15:529.1(A)(l)(b)(ii) in effect prior to the ameliorative changes made by Act 408. This decision is in accord with the statement in Act 403 that its provisions shall have prospective effect only and with Louisiana’s strong presumption against retro-activity of statutes. As we noted in Su-gasti, the legislature could have employed language in Act 403 signifying its intent that the more lenient sentencing provisions were to take immediate effect if it so desired.

Policy considerations also convince us that the applicable penalty provision is that existing on the date of the commission of the offense. The contrary determination that defendant is subject to the penalty provision in effect at the time of his | ^adjudication as a habitual offender would allow the district attorney, rather than defendant’s own act, to control the fixing of defendant’s status as a habitual offender and the applicable penalty depending on when the habitual offender bill is filed. Concomitantly, if we were to adopt the position that the date of the habitual offender adjudication fixes the applicable penalty provision, some defendants might be encouraged to delay proceedings to coincide with the effective dates of more lenient sentencing provisions. Either of these situations would wreak havoc with our sense of fairness, and, in a practical sense, with the dockets of the courts.

Finally, we recognize that the purpose of the provisions of Act 403 at issue was to reduce the sentences of certain habitual offenders in order to ease the financial burden on the state. We note, however, that the Act contains no indication that the legislature intended for the provisions of La. R.S. 15:529.1 (A)(1)(b)(ii), as amended by Act 403, to apply to all sentences imposed following the effective date of the statute. Thus, given the language employed in the Act, including the specific declaration that the provisions of the Act are to have prospective effect only, and the policy considerations explained above, we reaffirm the principles and analysis consistently employed in our prior jurisprudence. Consequently, we find that defendant should be sentenced according to the law that was in effect at the time he committed the offense.

Conclusion

For all the reasons expressed herein, we conclude that the punishment to be imposed on defendant, a habitual offender, is that provided by La. R.S. 15:529.1 as it existed on the date he committed the underlying offense. We therefore reverse that portion of the court of appeal’s judgment that vacated the habitual sentence imposed on defendant by the district court. However, because it determined that defendant’s | ishabitual offender sentence was improper, the court of appeal pretermitted consideration of defendant’s second assignment of error contending the sentence imposed was unconstitutionally excessive. We therefore remand this case to the court of appeal for consideration of defendant’s remaining assignment of error that was pretermitted on appeal.

Reversed and Remanded.

CALOGERO, C.J., concurs.

WEIMER, J., additionally concurs and assigns reasons.

JOHNSON, J., dissents and assigns reasons.

hWEIMER, J.,

concurring.

I agree with Justice Kimball’s opinion.

In the instant case, the detailed and thoughtful evaluation by the court of appeal majority prompted the writ grant. This court has previously addressed the issue in the context of the habitual offender law. State v. Barnes, 02-2059 (La.4/4/03), 845 So.2d 354 (decided after the court of appeal’s decision herein), and State v. Dreaux, 205 La. 387, 17 So.2d 559 (1944).

As the author of State v. Sugasti 01-3407 (La.6/21/02), 820 So.2d 518, and State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, which illustrate that statutory scrutiny is essential, I agree with Justice Kim-ball’s thorough analysis of the issues presented. I write separately to state that although this court applies the law, it is within the legislative purview to determine policy related to the punishment range. As it is 12the legislature’s responsibility to make these significant policy determinations, it was the legislature’s responsibility to decide whether the more lenient provisions were to apply to persons who committed the crime prior to the amendments. Instead of providing retroactive applicability for the revisions, the legislature chose prospective effect only.

The language of LSA-R.S. 15:529.1(D)3, which states “when the judge finds,” merely refers to the procedure the judge must utilize in making a determination the defendant engaged in prior criminal activity. A defendant is’ not convicted, of being a habitual offender. Rather, defendants are adjudicated as multiple offenders because of prior convictions. The sentence being imposed following such adjudication is an enhanced penalty for the underlying conviction. Read in context, the “when the judge finds” phrase is not sufficiently clear to result in a departure from the well-established rule that one is wedded to the penalty as of the date of the crime. See Dreaux, 205 La. at 391, 17 So.2d at 560; see also, State v. Clark, 391 So.2d 1174 (La.1980); accord, State v. Paciera, 290 So.2d 681 (La.1974). A defendant’s sentence is fixed based on his action in committing criminal activity. Thus, a defendant’s voluntary act of engaging in criminal activity establishes his sentencing fate. This is especially so when the statute specifically refers to prospective effect only.

The “prospective effect” language was conspicuously absent in the driving while intoxicated provision of LSA-R.S. 14:98(E) as amended by 2001 La. Acts No. 1163, the amendment addressed in Mayeux, 01-3195, 820 So.2d 526. However, such language was present in the amendment to LSA-R.S. 40:966(0(1) enacted by 2001 La. Acts No. 403, and addressed in Su-gasti, 01-3407, 820 So.2d 518. In those two cases the court distinguished Act 403 from the provisions of Act 1163. The 1 o.provisions in Act 1163 (which amended the driving while intoxicated statute) retained the sentencing ranges provided for third and fourth offense driving while intoxicated violations, but radically changed the way the offender may serve the sentence imposed by the court. Act 1163 did not include language specifying only prospective effect; Act 1163 simply went into effect on August 15, 2001. Sugasti, 01-3407 at 5-6, 820 So.2d at 521.

Significantly, in the statutory provision presently before this court, there is no indication of retroactive application, unlike Act 1163 which specifically stated the ameliorative effect of that statute could be applied to those who were already convicted. See Mayeux, 01-3195 at 5-6, 820 So.2d at 529-530. (Language in the amending legislation grants potential relief to those already convicted; see Section 4 of Act 1163.) Thus, the decision in Mayeux is an outlier, attributable to the particular language used in the amendment. May-eux underscores it is the legislature that makes the policy determinations regarding punishment.

h JOHNSON, Justice

dissenting, assigns reasons.

The defendant, Danny Parker, is only one of hundreds of criminal defendants in Louisiana who have been convicted of drug offenses and sentenced as habitual offenders to life imprisonment without benefit of parole, probation or suspension of sentence. In the instant case, Mr. Parker was tried and convicted of one count of possession of a Schedule III controlled dangerous substance, and one count of possession of a Schedule IV controlled dangerous substance. Due to his two previous convictions, he now faces a life sentence pursuant to the provisions of La. R.S. 15:529.1(A)(l)(b)(ii) in effect at the time of the commission of the crime. This result is not only draconian, but in my mind the Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution have been violated by the excessiveness of this sentence in comparison to the crime for which he has been convicted.

Trial courts have the authority to reduce a mandatory minimum sentence provided by the multiple offender statute for a particular offense and offender, if the sentence would be constitutionally excessive. State v. Pollard, 93-0660 (La.10/20/94), 644 So.2d 370. Further, this Court held in State v. Dorthey, 623 So.2d 1276 (La.1993), that if, in sentencing a defendant, the trial judge were to find that the punishment mandated by the habitual offender statute made no measurable | ¡.contribution to acceptable goals of punishment or that the sentence amounted to nothing more than purposeful imposition of pain and suffering and was grossly out of proportion to the severity of the crime, the trial judge would have the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. Id. at 1280-81.

In State v. Burns, 97-1553 (La.App. 4 Cir. 11/10/98), 723 So.2d 1013, writ denied, 98-3054 (La.4/1/99), 741 So.2d 1282, the Fourth Circuit Court of Appeal vacated the life sentence of a fourth felony habitual offender sentenced pursuant to La. R.S. 15:529.1(A)(l)(c)(ii) for distribution of one rock of crack cocaine, after the court concluded that the defendant distributed drugs to support his habit. Burns, 723 So.2d at 1019. The lower court also cited the economic impact of a life sentence, specifically, that the defendant would never be a productive taxpayer in prison, and that life imprisonment imposed an undue burden on taxpayers of the State who must feed, house, and clothe the defendant for life, and provide geriatric care in later years. Id. at 1020.

The amendments to La. R.S. 15:529.1 were enacted by the Louisiana legislature to ease the financial burden on the State by reducing incarceration rates for nonviolent offenders. State v. Sugasti 01-3407, p. 3 (La.6/21/02), 820 So.2d 518, 520. As pointed out in the majority opinion, the changes made to La. R.S. 15:529.1(A)(1)(b)(ii), if applied to the instant case, expose the defendant to a maximum term of only ten years imprisonment at hard labor. I reiterate my reservations expressed in the Sugasti dissent:

“It is illogical to conclude that the legislature intended that drunk drivers convicted under La. R.S. 14:98(G) must be sentenced under the post-amendment provisions, even though the underlying offense occurs prior to the amendment, based on the stated legislative purpose, but conclude that the legislature did not intend the same result 13for those offenders found guilty of minor drug offenses.”
Sugasti, 820 So.2d at 522.

Recent statistics indicate that prisoners convicted of drug related offenses make up 27% of the total incarcerated population in Louisiana, compared to only 20% in the United States as a whole. These figures must be contrasted with violent crime statistics, which indicate that 44% of the prison population in Louisiana were incarcerated for violent crimes, compared to 49% in the United States as a whole. Thus, drug offenders make up nearly one-third of the incarcerated population in Louisiana, compared to only one-fifth nationally.

It is clear that the legislative intent in amending La. R.S. 15:529.1 was to enact a more rehabilitive sentencing scheme for non-violent offenses. Sugasti, 820 So.2d at 523-24. I support the imposition of lengthy prison sentences in cases involving high-volume drug transactions or in situations where the State has proven that the defendant involved is high in the chain of drug distribution. In the instant case, the defendant was not charged or convicted of such an offense. For this reason, I respectfully dissent.

      . The court of appeal reversed the multiple offender adjudication and the sentence on count two because it found the evidence presented was insufficient to support the use of the aggravated battery conviction, which was based on defendant’s guilty plea, to establish defendant’s status as a third felony offender.

      . The court of appeal affirmed the district court's adjudication of defendant as a third felony habitual offender, and defendant did not seek review of this portion of the court of appeal's judgment in this court. Accordingly, the adjudication of defendant as a third felony habitual offender is now final.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . La. R.S. 15:529.l(A)(l)(b)(i) provides, "The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. ...”

      . This court went on to hold, however, that defendant had in fact received an illegal, indeterminate sentence, and that he should have been sentenced to a determinate term of imprisonment under the law in effect both at the time he committed the predicate offense and at the time he pleaded guilty as a second offender and was sentenced as such. We therefore vacated the sentence and remanded the case for resentencing.

      . Specifically, quoting State v. Clark, 391 So.2d 1174 (La.1980), we stated:
      [A]n ameliorative change in the penalty provision of a statute which occurs after the commission of the offense is a factor to be weighed by the trial judge in imposing sentence. However, this court noted [in Clark ] that it is the rule in this state that the penalty provision in effect at the time of the offense is the applicable provision. Although the trial judge should consider the ameliorative changes in the law in imposing sentence, the trial judge should not derogate from the penalty provision in effect at the time of the commission of the offense.

        Sugasti, 01-3407 at p. 5, 820 So.2d at 520-21 (internal quotation and citation omitted).

      . One of the reasons we granted the State's application for certiorari in this matter was to consider more fully this issue that split the court's vote in Barnes.

      . We note the court of appeal in the instant case did not have benefit of this per curiam opinion when it issued the judgment under review since Barnes was handed down approximately a month after the court of appeal vacated defendant’s habitual offender sentence.

      . See La. R.S. 1:2 (“No Section of the Revised Statutes is retroactive unless it is expressly so stated.”)

      . In Act 403 of 2001, the legislature addressed the grave societal problem of prison overcrowding resulting, in part, from increasingly harsher sentences imposed during the past 30 years. As Judge Daley aptly noted in his dissent in State v. Flagg, 01-0965 (La.App. 5 Cir. 3/26/02), 815 So.2d 208, the legislature decided that certain combinations of crimes, which previously resulted in life sentences, no longer warranted life sentences. Making a policy determination that the harsher sentences are no longer appropriate for the offenses, the legislature enacted comprehensive statutory revisions in an effort to alleviate the enormous prison overcrowding problem with its resulting costs to the public fisc. The statutory revisions evidently reflect the legislative determination that long term incarceration in some instances does not cure societal ills and is too costly.
      The issue in this case is to determine to whom these revisions apply.


source: Caselaw Access Project

license: Public Domain

text:
    In re Edgar MCLARRIN and Charlotte McLarrin Applying for Private Adoption of E.K.E. and O.L.G.
    No. 2004-C-0595.
    Supreme Court of Louisiana.
    March 24, 2004.
   In re McLarrin, Joey; — Other; Applying for Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. D, No. 589; to the Court of Appeal, Second Circuit, No. 38,616-JAC.

Denied.


text:
    STATE of Louisiana v. Ryan MATTHEWS.
    No. 2004-KP-0670.
    Supreme Court of Louisiana.
    March 24, 2004.
   In re Matthews, Ryan; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 97-3780.

Denied.

KNOLL, J., recused.


text:
    Merrilee G. ALBRIGHT, Julie M. Lafargue, Dolores George Lavigne, Ann Mathison McLaurin and Jody L. Roberts v. SOUTHERN TRACE COUNTRY CLUB OF SHREVEPORT, INC. and Club Corporation of America.
    No. 2003-C-3413.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Southern Trace Country Club of Shreveport Inc. et ah; Club Corporation of America; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 449,372; to the Court of Appeal, Second Circuit, No. 37,725-CA.

Granted.

KIMBALL, J., recused.

VICTORY, J., recused.

TRAYLOR, J., recused.


text:
    OCEAN ENERGY, INC. v. PLAQUEMINES PARISH GOVERNMENT.
    No. 2004-C-0066.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Ocean Energy Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 46-196; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0805.

Granted.


text:
    Laura E. TRUNK v. MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS, State of Louisiana, Louisiana Health Care Authority, John Doe and ABC Insurance Company.
    No. 2004-C-0181.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Medical Center of Louisiana at New Orleans; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 97-1652; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0275.

Granted.


text:
    Patrick J. BERRIGAN, et al. v. DEUTSCH, KERRIGAN & STILES, LLP
    No. 2004-CC-0189.
    Supreme Court of Louisiana.
    March 26, 2004.
    Rehearing Denied May 21, 2004.
   In re Berrigan, Patrick J. et al.; Campbell, David L.; Reasonover, Charles K.; Smith, Ralph E.; Thornhill, Tom W.; Tompkins, Christopher; Weller, Francis G.; LaBelle Creole Associates; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 99-303; to the Court of Appeal, Fourth Circuit, No. 2003-C-1997.

Granted. The decision of the court of appeal to deny the plaintiffs right to a jury trial is reversed and the trial court’s decision is reinstated. The record reflects that the plaintiffs complied with the Jury Trial Order issued by the trial court. See State v. Walker, 95-0185 (La.6/30/95), 658 So.2d 190, 192 (The right of a litigant to a jury trial is fundamental in character and the courts will indulge every presumption against a waiver, loss, or forfeiture thereof.)

KIMBALL, J., would deny the writ.

KNOLL, J., would deny the writ.

KIMBALL and KNOLL, JJ„ would grant the rehearing.


text:
    STATE ex rel. Joseph BUTLER v. STATE of Louisiana.
    No. 2003-KH-0245.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Butler, Joseph; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. A, No. 97-145,512; to the Court of Appeal, First Circuit, No. 2002 KW 2071.

Writ granted in part; otherwise denied; case remanded. The district court is ordered to appoint counsel for relator for purposes of conducting an evidentiary hearing to determine whether counsel’s failure to object at trial to hearsay testimony concerning the content of an anonymous tip which led to the arrest of relator for possession of three rocks of cocaine with the intent to distribute constituted ineffective assistance of counsel under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Byron POWELL & Debbie Powell v. WALKER CONSTRUCTION COMPANY, INC., et al.
    No. 2003-CC-2924.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Byron Powell et al., applying for reconsideration to this court’s action dated January 9, 2004, from Parish of Winn, Eight Judicial District Court, Division 0, No. 37168; to the court of Appeal, Second Circuit, Nos. 38030-CW, 38115-CW.

Reconsideration granted. Writ denied.

JOHNSON, J., would grant the writ.

KNOLL, J., would grant the writ.

TRAYLOR, J., recused.


text:
    Charles CARTER v. Burl CAIN, Warden, Louisiana State Penitentiary; Richard Stalder, Secretary, Department of Public Safety & Corrections; Raphael Augustine, Classification Officer and Sergeant Wright, I-B Term Security.
    No. 2002-CI-3228.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Carter, Charles; — Plaintiff(s); Applying for Reconsideration of this Court’s order dated January 30, 2004; Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 469,205; to the Court of Appeal, First Circuit, No. 2001 CA 2841.

Reconsideration denied.


text:
    STATE ex rel. Darren HAYWOOD v. STATE of Louisiana.
    No. 2003-KH-0180.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Haywood, Darren; — Plaintiff(s); Applying for Reconsideration of this Court’s order dated January 30, 2004; Parish of Orleans, Criminal District Court Div. A, No. 281-981.

Reconsideration denied.


text:
    Mary SEITHER, Individually and in Her Capacity as Tutrix of the Minors, Mark Seither and Stephen Seither v. WINNEBAGO INDUSTRIES, INC., Bernard J. Seither, AIU Insurance Company, and State Farm Mutual Automobile Insurance Company.
    No. 2003-C-2797.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Seither, Mary; — Plaintiff; Applying for Reconsideration of this Court’s action dated February 13, 2004, Parish of Orleans, Civil District Court Div. C, No. 99-17502; to the Court of Appeal, Fourth Circuit, No. 2002-CA-2091.

Reconsideration denied.

JOHNSON, J., would grant the reconsideration.


text:
    Ronnie CLARK v. STATE of Louisiana, et. al.
    No. 2003-C-3417.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Clark, Ronnie; Applying for Reconsideration of this Court’s order dated February 20, 2003; Parish of St. Charles, 29th. Judicial District Court, Div. C, No. 44,194; to the Court of Appeal, Fifth Circuit, No. 03-CA-0455.

Reconsideration denied.

CALOGERO, Chief Justice, recused.


text:
    Lawrence MOORE as the Tutor of Paris J'Nea Lee v. SUCCESSION OF Charles D. GRAVES, Jr., et al.
    No. 2003-CC-3208.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Blakes, Sedric C. Sr. As Tutor;— Plaintiffs); Applying for Reconsideration of this Court’s order dated February 13, 2004; Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 493,435; to the Court of Appeal, First Circuit, No. 2003 CW 1407.

Not considered. Not timely filed. See Supreme Court Rule IX, Section 1.


text:
    Kaywanna FOLEY v. PUBLIC STORAGE and Public Storage, Inc.
    No. 2004-CC-0199.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Public Storage, Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, First City Court of New Orleans, No. 01-55040; to the Court' of Appeal, Fourth Circuit, No. 03-C-1645.

Not considered. Not timely filed.


text:
    Angel K. POPLAR v. DILLARD'S DEPARTMENT STORES, INC. and ABC Insurance Company.
    No. 2004-C-0287.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Dillard’s Department Stores, Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 585-215; to the Court of Appeal, Fifth Circuit, No. 03-CA-1023.

Not considered. Not timely filed.


text:
    Richard MURRAY, et ux. v. TOWN OF MANSURA, et al.
    No. 2004-OC-0296.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Murray, Richard et al.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 2000-1038-B.

Not considered. Relator’s application seeks review of rulings of the United States Court of Appeals for the Fifth Circuit. This Court has no subject matter jurisdiction to consider such rulings.

KIMBALL, J., would deny the writ.


text:
    STATE ex rel. Ronnie K. HONGO v. STATE of Louisiana.
    No. 2003-KH-0717.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Hongo, Ronnie K.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Sabine, 11th Judicial District Court Div. A, Nos. 41495, 42231; to the Court of Appeal, Third Circuit, No. CW 02-01466.

Denied. See State ex rel. Fleury v. State, 93-2898 (La.10/13/95), 661 So.2d 488.


text:
    STATE ex rel. Craig B. HAWKINS v. STATE of Louisiana.
    No. 2003-KH-0721.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Hawkins, Craig B.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 84-1308; to the Court of Appeal, Fifth Circuit, No. 2002-KH-573.

Denied.


text:
    STATE ex rel. Tyrone FORREST v. STATE of Louisiana.
    No. 2003-KH-0723.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Forrest, Tyrone; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 387-885; to the Court of Appeal, Fourth Circuit, No. 2002-K-0140.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Henry C. AKINS v. STATE of Louisiana.
    No. 2003-KH-0726.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Akins, Henry, C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 387-118; to the Court of Appeal, Fourth Circuit, No. 2002-K-2469.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Levy WILLIAMS v. STATE of Louisiana.
    No. 2003-KH-0727.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Williams, Levy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 6-96-785; to the Court of Appeal, First Circuit, No. 2002 KW 2087.

Denied.


text:
    STATE ex rel. James R. WILSON v. STATE of Louisiana.
    No. 2003-KH-0728.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Wilson, James R.; — Plaintiff; Applying for .Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 97-3904; to the Court of Appeal, Fifth Circuit, No. 03-KH-51.

Denied. La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Norris JASMINE v. STATE of Louisiana.
    No. 2003-KH-0731.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Jasmine, Norris; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 375-352; to the Court of Appeal, Fourth Circuit, No. 03-K-0012.

Denied.


text:
    STATE ex rel. Clifford TYSON v. STATE of Louisiana.
    No. 2003-KH-0735.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Tyson, Clifford; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 289,459; to the Court of Appeal, First Circuit, No. 2002 KW 2225.

Denied.


text:
    STATE of Louisiana v. George PONSELL, Jr.
    No. 2003-KH-0759.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Ponsell, George Jr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 97-F1456; to the Court of Appeal, Second Circuit, No. 37274-KH.

Denied. Cf. La.C.Cr.P. art. 877(A).


text:
    STATE ex rel. Raymond MCGARY v. STATE of Louisiana.
    No. 2003-KH-0760.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re McGary, Raymond; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 48550; to the Court of Appeal, First Circuit, No. 2002 KW 2550.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Robert BROWN v. STATE of Louisiana.
    No. 2003-KH-0761.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Brown, Robert;- — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 397-918; to the Court of Appeal, Fourth Circuit, No. 2002-K-2509.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Willie POGUE v. STATE of Louisiana.
    No. 2003-KH-0762.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Pogue, Willie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. A, No. 980480; to the Court of Appeal, First Circuit, No. 2002 KW 2164.

Denied.


text:
    STATE ex rel. Sylvester Ray REED v. STATE of Louisiana.
    No. 2003-KH-0765.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Reed, Sylvester Ray; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 157,232; to the Court of Appeal, Second Circuit, No. 37217-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Rick FERRINGTON v. STATE of Louisiana.
    No. 2003-KH-0766.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Ferrington, Rick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 00-F0735; to the Court of Appeal, Second Circuit, No. 37163-KH.

Denied. Relator must exhaust administrative remedies before seeking judicial review, and then must seek that review in the 19th Judicial District Court. See La. Rev.Stat. 15:1171 et seq.


text:
    STATE ex rel. Oscar FRANK v. STATE of Louisiana.
    No. 2003-KH-0767.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Frank, Oscar; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 255-565; to the Court of Appeal, Third Circuit, No. KH 02-00483.

Denied.


text:
    STATE of Louisiana v. Robert THOMPSON.
    No. 2003-KH-0780.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Thompson, Robert; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 147-475; to the Court of Appeal, Fourth Circuit, No. 2002-K-2473.

Denied.


text:
    STATE ex rel. Racey FORD, Sr. v. STATE of Louisiana.
    No. 2003-KH-0781.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Ford, Racey, Sr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. A, Nos. 10253, 14594; to the Court of Appeal, First Circuit, No. 2002 KW 2737.

Denied.


text:
    STATE ex rel. Curtis GORDON v. STATE of Louisiana.
    No. 2003-KH-0788.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Gordon, Curtis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 248-250.

Denied.


text:
    STATE ex rel. Wilbert CARTER v. STATE of Louisiana.
    No. 2003-KH-0790.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Carter, Wilbert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. C, No. 98-CR-00031; to the Court of Appeal, First Circuit, No. 2002 KW 2668.

Denied.


text:
    Bruce BOSLEY v. STATE of Louisiana.
    No. 2003-KH-0795.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Bosley, Bruce Pro Se; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. C, No. 1819-94; to the Court of Appeal, First Circuit, No. 2002 KW 2589.

Denied.


text:
    STATE ex rel. Gary L. CLAY v. STATE of Louisiana.
    No. 2003-KH-0798.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Clay, Gary L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 381-030.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Richard JAMES v. STATE of Louisiana.
    No. 2003-KH-0800.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re James, Richard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 156,592; to the Court of Appeal, First Circuit, No. 2002 KW 1570.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Curt ALONZO and State ex rel. David Alonzo v. STATE of Louisiana.
    No. 2003-KH-0801.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Alonzo, Curt; Alonzo, David;— Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 358,-539; to the Court of Appeal, Fourth Circuit, No. 2002-K-2405.

Denied.


text:
    STATE ex rel. Charles LOVING v. STATE of Louisiana.
    No. 2003-KH-0803.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Loving, Charles; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, Nos. 85013, 85014; to the Court of Appeal, First Circuit, No. 2002 KW 2711.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Michael HILTON v. STATE of Louisiana.
    No. 2003-KH-0804.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Hilton, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 394-447; to the Court of Appeal, Fourth Circuit, No. 2003-K-0174.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Joseph MONNIE v. N. Burl CAIN, et al.
    No. 2003-CI-0806.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Monnie, Joseph; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 474,301; to the Court of Appeal, First Circuit, No. 2002 CW 1539.

Denied.


text:
    STATE ex rel. Throme LACROIX v. STATE of Louisiana.
    No. 2003-KH-0824.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Lacroix, Throme; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 396-406; to the Court of Appeal, Fourth Circuit, No. 2002-K-2508.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Ronald J. BENSON v. STATE of Louisiana.
    No. 2003-KH-0828.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Benson, Ronald J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. 80048; to the Court of Appeal, Third Circuit, No. 02-715.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Ira Joe MIMS v. STATE of Louisiana.
    No. 2003-KH-0830.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Mims, Ira Joe; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 129,511; to the Court of Appeal, Second Circuit, No. 36918-KH.

Denied.


text:
    Kerry MCCOY and Theresa McCoy v. Ronnie LUCIUS and Mildred Lucius.
    No. 2003-C-1217.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re McCoy, Kerry et al.; McCoy, Theresa;' — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Ouachita, West Monroe City Court, No. 26,147; to the Court of Appeal, Second Circuit, No. 36,894-CA.

Denied.


text:
    STATE of Louisiana v. Walter Oliver SANDERS.
    No. 2003-KK-2112.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Sanders, Walter O.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. A, Nos. 406,812, 406,-813; to the Court of Appeal, First Circuit, No. 2003 KW 1039.

Denied.


text:
    STATE of Louisiana v. Walter Oliver SANDERS.
    No. 2003-KK-2176.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. A, Nos. 406,812, 406,-813; to the Court of Appeal, First Circuit, No. 2003 KW 1039.

Denied.


text:
    STATE of Louisiana v. Christopher D. LEBRETON.
    No. 2003-KO-3176.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Lebreton, Christopher D.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 418-884; to the Court of Appeal, Fourth Circuit, No. 2003-KA-0321.

Denied.


text:
    STATE of Louisiana ex rel. Lamar DUFFY v. STATE of Louisiana.
    No. 2003-K-3196.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Duffy, Lamar; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. A, No. 16,700; to the Court of Appeal, First Circuit, No. 2003 KW 1810.

Denied.


text:
    STATE of Louisiana v. Noel BERNIARD.
    No. 2003-KO-3210.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Berniard, Noel; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 01-4929; to the Court of Appeal, Fifth Circuit, No. 03-KA-484.

Denied.


text:
    STATE of Louisiana v. Paul H. WILL.
    No. 2003-K-3224.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Will, Paul H.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 00-4845; to the Court of Appeal, Fifth Circuit, No. 03-KA-438.

Denied.


text:
    STATE of Louisiana v. Anna GREEN.
    No. 2003-K-3228.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Green, Anna; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. James, 23rd Judicial District Court Div. B, No. 3368; to the Court of Appeal, Fifth Circuit, No. 03-KA-410.

Denied.


text:
    STATE of Louisiana v. Bobby C. TERRICK.
    No. 2003-KO-3272.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Terrick, Bobby C.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 01-4723; to the Court of Appeal, Fifth Circuit, No. 03-KA-515.

Denied.


text:
    STATE of Louisiana v. Andrew T. BOURG.
    No. 2003-KO-3283.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Bourg, Andrew T.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 377,648; to the Court of Appeal, First Circuit, No. 2003 KA 0141.

Denied.


text:
    STATE of Louisiana v. Michael Charles MAGDALENO.
    No. 2003-K-3342.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Magdaleno, Michael Charles; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. B, No. 263,233; to the Court of Appeal, Third Circuit, No. KA 03-618.

Denied.


text:
    STATE of Louisiana v. Dustin MCLELLAND.
    No. 2003-KO-3372.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re McLelland, Dustin; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 01-6692; to the Court of Appeal, Fifth Circuit, No. 03-KA-498.

Denied.


text:
    STATE of Louisiana v. Nolan C. TURNER, III.
    No. 2003-KO-3400.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Turner, Nolan C. Ill; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 203,173; to the Court of Appeal, Second Circuit, No. 37,162-KA.

Denied.

TRAYLOR, J., recused.


text:
    Thelma IRVIN, Individually and on Behalf of Her Minor Child, Rochelle Johnlouis v. STATE FARM MUTUAL AUTO INS. CO., State Farm Insurance Company, Lisa M. Reynaud, and Kim Reynaud.
    No. 2003-C-3537.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Irvin, Thelma; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. I, No. 2001-6375; to the Court of Appeal, Third Circuit, No. 03-717.

Denied.


text:
    Wayne SIMONEAUX, et al. v. AMOCO PRODUCTION COMPANY, Newpark Resources d/b/a New Park Environmental Services, Jolen Operating Company, and South Oak Production Co.
    No. 2004-C-0001.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Alexander, Nancy; Alexander, Diane; Simoneaux, Wayne et al.; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. D, Nos. 23,925, 24,023, 24,358; to the Court of Appeal, First Circuit, No. 2002 CA 1050.

Denied.


text:
    Charlotte ST. ROMAIN v. STATE of Louisiana, Through the DEPARTMENT OF WILDLIFE AND FISHERIES and Lyle Soniat.
    No. 2004-C-0096.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Louisiana State of et al.; Wildlife and Fisheries Dept, of; Soniat, Lyle;— Defendant(s); Applying for Writ of Certio-rari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 477,803; to the Court of Appeal, First Circuit, No. 2003 CA 0291.

Denied.

KIMBALL, J., would grant the writ.

KNOLL, J., recused.


text:
    Lori HUSSER v. PDS, INC., et al.
    No. 2004-CC-0156.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re PDS, Inc. d/b/a; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. D, No. 62,144; to the Court of Appeal, Third Circuit, No. CW 03-01543.

Denied.

TRAYLOR, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Betty Jean HARGROVE, Individually and as Natural Tutrix of Jessica Banks v. MISSOURI PACIFIC RAILROAD CO., et al.
    No. 2004-C-0187.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Comeaux, Tommy; Union Pacific Railroad Co.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. C-129-97; to the Court of Appeal, Third Circuit, No. 03-818.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Myrtle K. LATIGUE v. CHRISTUS ST. PATRICK HOSPITAL.
    No. 2004-C-0193.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Christus St. Patrick Hospital;— Defendant; Applying for Writ of Certiora-ri and/or Review Office of Workers’ Compensation Dist.-# 3, No. 02-05371; to the Court of Appeal, Third Circuit, No. 03-871.

Denied.

VICTORY, J., would grant the writ.


text:
    Eroll EBEY, et al. v. AVOYELLES PARISH SCHOOL BOARD and State of Louisiana.
    No. 2004-C-0196.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Ebey, Eroll et ah; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2002-4078-A; to the Court of Appeal, Third Circuit, No. 03-765.

Denied.


text:
    Tom BROWN v. CRESCENT CITY NISSAN and Kenneth Barrett.
    No. 2004-C-0197.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Brown, Tom; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2001^4132; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0713.

Denied.


text:
    Richard W. MICHAELSON, Individually and as Administrator of the Estate of His Wife, Amy J. Hall Michaelson, et al. v. LOUIS ARMSTRONG INTERNATIONAL AIRPORT, f/k/a New Orleans International Airport, et al.
    No. 2004-CC-0200.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Michaelson, Richard W. et al.; Michaelson, Jennifer A.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2003-7234; to the Court of Appeal, Fourth Circuit, No(s). 2003-C-1874, 2003-C-1888, 2003-C-1921.

Denied.


text:
    Louise RACHAL v. TENET HEALTHCARE SYSTEMS, d/b/a Memorial Medical Center a/k/a Mercy Hospital.
    No. 2004-C-0205.
    Supreme Court of Louisiana.
    March 26, 2004.
   ■ In re Tenet Healthcare Systems, d/b/a; Memorial Medical Center a/k/a; Mercy Hospital; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. F, No. 2001-19363; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0630.

Denied.


text:
    J. Roger BERGERON, in His Official Capacity as Director of the Sales Tax and Use Department for the Parish of West Baton Rouge v. Preston W. ALBERT, Jr.
    No. 2004-C-0206.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Albert, Preston W. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. B, No. 54,943; to the Court of Appeal, First Circuit, No. 2002 CA 1955.

Denied.


text:
    C.M. THIBODAUX, LTD. v. EXXON MOBIL CORP., et al.
    No. 2004-CC-0210.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Atofina Petrochemicals Inc. et al.; Kerr-MeGee Oil & Gas Corp.; Shell Oil Co.; Shell Offshore Inc.; SWEPI LP; Amerada Hess Corp.; Chevron U.S.A. Inc.; Texaco Inc.; Amoco Production Co.; BP America Production Co.; Arco Oil & Gas Co.; EOG Resources Inc.; Louisiana Land & Exploration Co. (LL & E); Marathon Oil Co.; Union Oil Co. of California (UNOCAL); Oxy U.S.A. Inc.; Placid Oil Co.; Sexton Oil & Minerals Corp.; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2001-16872; to the Court of Appeal, Fourth Circuit, No. 2003-C-1958.

Denied.


text:
    Leonard BLOCKER, et ux. v. RAPIDES REGIONAL MEDICAL CENTER, et al.
    No. 2004-C-0215.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Louisiana Patients’ Compensation Fund & Oversight Board; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 191,652; to the Court of Appeal, Third Circuit, No. OS-745.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Michael GROS v. FRED SETTOON, INC.
    No. 2004-C-0235.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Settoon Construction, Inc.; Set-toon, Inc.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. E, No. 97-58097; to the Court of Appeal, Third Circuit, No. 03-461.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Clementine FAIRROW, et al. v. James E. MARVES, et al.
    No. 2004-C-0237.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Marves, James E. et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 196,834; to the Court of Appeal, Third Circuit, No(s). 03-169, 03-837.

Denied.


text:
    Tyrone FLETCHER v. ALLSTATE INSURANCE COMPANY and Edith Schreiner.
    No. 2004-C-0270.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Fletcher, Tyrone; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 557-713; to the Court of Appeal, Fifth Circuit, No. 03-CA-790.

Denied.


text:
    Stephen SCHWEITZER, et al. v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC., et al.
    No. 2004-CC-0276.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Schweitzer, Stephen et al.; Miller, Sandra; Schweitzer, Shannon; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 98^1827; to the Court of Appeal, Fourth Circuit, No. 2003-C-2227.

Denied.


text:
    Gayle Louise SCHULTZ, etc. v. Wavy H. DOYLE, et al.
    No. 2004-C-0277.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Doyle, Wavy H. Jr. as Executor; Doyle, Era; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 190,758; to the Court of Appeal, Third Circuit, No. 03-0284.

Denied.


text:
    Teri Palermo WURTZEL v. Robert S. WURTZEL.
    No. 2004-C-0280.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Wurtzel, Teri Palermo; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 552-615; to the Court of Appeal, Fifth Circuit, No. 03-CA-902.

Denied.


text:
    David ALBERT, Jr., et. al. v. The CITY OF ALEXANDRIA and the Alexandria Civil Service Commission.
    No. 2003-C-3512.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Albert, David et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. A, No. 183,803; to the Court of Appeal, Third Circuit, No. OS-196.

Denied.


text:
    STATE of Louisiana, et al. v. Fab IDRIS.
    No. 2004-C-0268.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Idris, Fab; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 98-6533; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1242.

Denied.


text:
    Derek P. EDWARDS, Individually and on Behalf of All Others Similarly Situated v. GENERAL MOTORS CORPORATION and Iberville Motors, Inc., et al.
    No. 2004-CC-0282.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Edwards, Derek P. et al.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. A, No. 50,667; to the Court of Appeal, First Circuit, No. 2003 CW 1359.

Denied.


text:
    Andrew MESSINA, Jr. v. ST. CHARLES PARISH COUNCIL.
    No. 2004-C-0285.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Messina, Andrew Jr.; D & G Productions Inc.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. D, No. 50,029; to the Court of Appeal, Fifth Circuit, No. 03-CA-644.

Denied.


text:
    Troy L. DAVIS, Jr. v. AMS TUBE CORPORATION.
    No. 2004-C-0286.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Davis, Troy L. Jr.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 6, No. 99-03710; to the Court of Appeal, First Circuit, No. 2002 CA 2427.

Denied.


text:
    Joseph P. GARDINER, Charmaine Gardiner, Wife of Joseph Gardiner and on Behalf of Their Minor Children, Jamie and Jessica Gardiner v. Denis BERGERON, St. Tammany Parish Sheriff's Department and Liberty Mutual Insurance Company.
    No. 2004-C-0298.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Gardiner, Joseph P.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 2000-10790; to the Court of Appeal, First Circuit, No. 2003 CA 0599.

Denied.


text:
    Larry C. SCHAFFER v. BRAND SCAFFOLD BUILDERS, INC.
    No. 2004-C-0303.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Shaffer, Larry C.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District # 6, No. 01-03689; to the Court of Appeal, First Circuit, No. 2003 CA 0288.

Denied.

JOHNSON, J., would grant the writ.


text:
    NEIGHBORHOOD SHIPPING, INC. v. A & B INDUSTRIES OF MORGAN CITY, INC., et al.
    No. 2004-CC-0305.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Neighborhood Shipping, Inc.;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 110,517; to the Court of Appeal, First Circuit, No. 2004 CW 0039.

Denied.


text:
    Herman WARREN v. ACTION OIL RECOVERY, INC.
    No. 2004-CC-0306.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Action Oil Recovery, Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation Dist.-5, No. 02-09485; to the Court of Appeal, First Circuit, No. 2003 CW 2296.

Denied.


text:
    Brenda BAKER and Griffin Baker, III, Individually and on Behalf of the Estate of His Minor Children D-Ashtreia and Griffin Baker, IV v. ZURICH AMERICAN INSURANCE COMPANY, Merlin J. Miller, SNL Distribution Service Company, Old Republic Insurance Company and Geico Insurance Company.
    No. 2004-CC-0308.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Zurich American Ins. Co.; Miller, Merlin J.; SNL Distribution Service Co.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2003-09089; to the Court of Appeal, Fourth Circuit, No. 2003-C-2083.

Denied.

TRAYLOR, J., would grant the writ.


text:
    RATCLIFF CONSTRUCTION COMPANY, L.L.C. v. STATE of Louisiana, DIVISION OF ADMINISTRATION, OFFICE OF FACILITY PLANNING AND CONTROL.
    No. 2004-C-0312.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Ratcliff Construction Co. L.L.C.;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 507026; to the Court of Appeal, First Circuit, No. 2003 CA 1742.

Denied.


text:
    Michael A. ZUMO and Lisa M. Zumo v. James M. WALKER, Jr., Progressive Security Insurance Company and Louisiana Department of Transportation and Development.
    No. 2004-C-0313.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Transportation and Development Department of; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 443,888; to the Court of Appeal, First Circuit, No. 2003 CA 0545.

Denied.


text:
    Lura LEE and Phillip E. Sowa v. COX COMMUNICATIONS NEW ORLEANS, INC., Jane Walker, Wife of, and Jonathan McCall, Blair Dupre, Helm Paint & Supply, and Benjamin Moore & Company
    No. 2004-CC-0537.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re McCall, Jane Walker et ah; McCall, Jonathan; Walker, Jane; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2002-10293; to the Court of Appeal, Fourth Circuit, No. 2003-C-2095. .

Denied.


text:
    Kelvin WELLS v. Pamela JOHNSON, Judge of the Juvenile Court.
    No. 2004-C-0567.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Wells, Kelvin; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 499,190; to the Court of Appeal, First Circuit, No. 2003 CA 0278.

Denied.


text:
    Jane Walker, Wife of, and Jonathan MCCALL v. Lura LEE and Phillip E. Sowa.
    No. 2004-CC-0591.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Sowa, Phillip E.; Lee, Lura et al.; Sowa, Lura Lee; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2002-10293; to the Court of Appeal, Fourth Circuit, No. 2003-C-2095.

Denied.


author: J^DECUIR, Judge. JjGREMILLION, Judge.

text:
    LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, et al. v. GROUNDLINK, INC., et al.
    No. 2003-0947.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.
    Opinion Granting Rehearing May 12, 2004.
    Joe Payne Williams, Williams Family Law Firm, L.L.C., Natchitoches, LA, for Plaintiffs/Appellees: Louisiana Farm Bureau Mutual Insurance Company, John R. Evans, Kristen Evans.
    Boyd A. Bryan, Perret Doise, Lafayette, LA, for Defendant/Appellant: Kelly Dort-lon.
    Robert Kennedy Jr., Cook, Yancey, King & Galloway, Shreveport, LA, for Defendant: Groundlink; Inc.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and GLENN B. • GREMILLION, Judges.
   J^DECUIR, Judge.

John and Kristen Evans and their homeowner’s insurer, Louisiana Farm Bureau Mutual Insurance Company, filed suit against Groundlink, Inc. and Kelly Dortlon d/b/a System Services to recover damages resulting from the backup of sewerage into the Evans’ home. The trial court granted a default judgment against Dortlon, and he appealed. Finding the judgment rendered below to be an absolute nullity, we vacate and remand for further proceedings.

The record reveals that on October 17, 2001, John and Kristen Evans discovered raw sewerage in several rooms of their home. A plumber was contacted, and the next day he determined that a cable line had been installed directly through a sewer pipe running from the Evans’ house. The evidence in the record shows that John Evans contacted the, cable company, Cox Communications, and was referred to System Services and Groundlink. Subsequent to the completion of the repairs, Evans requested from Kelly Dortlon, who represented himself as being with System Services, that his bills be paid. Evans received a letter from Dortlon discussing the locating and marking of utility lines when underground work is performed and essentially denying responsibility for the damaged pipe; however, Dortlon offered to “work this matter out” and suggested that Evans forward copies of his cleaning bills and carpet estimate to him.

Following receipt of this correspondence, Evans sent copies of the bills he had received to Dortlon, but Dortlon did not respond. Evans testified that he and his wife incurred damages including the cost of clean up, plumbing repair, new carpet, three days of lost wages, inconvenience, and embarrassment. They filed a claim with their insurer, which paid $4,886.40. Their policy had a $1,000.00 deductible and did not cover the cost of the plumbing repair, general damages, and lost wages. The insurer and Evans then filed suit against'Dortlon on October 11, 2002. ' When he failed to |2answer, the plaintiffs sought a default judgment which was rendered on May 30, 2003, awarding $4,886.40 to Farm Bureau and $7,183.40 to John and Kristen Evans.

A default judgment is obtained pursuant to the provisions of La.Code Civ.P. art. 1701, which provides in pertinent part:

A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.

Article 1702 requires that a default judgment be confirmed “by proof of the demand sufficient to establish a prima facie case.” Because these provisions are mandatory, a default judgment requires two steps in order to. be valid and enforceable: a preliminary default entered in the minutes and confirmation by prima facie proof.

. In the record before us, there is no written motion for a preliminary default, no evidence of an oral motion for default, and there is no minute entry showing that a default has been entered. Rather, there is only the transcript of a confirmation hearing, and a judgment rendered subsequent to that hearing.

In Clark v. Clark, 03-353 (La.App. 3 Cir. 10/1/03), 856 So.2d 206, we held that a final default judgment obtained without a valid preliminary default is an absolute nullity. In that case, a default judgment was confirmed against a defendant who had answered the petition. In Glessner v. Hyatt, 380 So.2d 222 (La.App. 3 Cir.1980), a preliminary default was entered prematurely, rendering the final judgment of default a nullity. Conversely, in Clark v. Neel, 583 So.2d 90 (La.App. 3 Cir.1991), this court affirmed a final judgment of default rendered after the trial court independently verified that a preliminary default had been properly entered and ordered a correction of the minutes to reflect same. In this case, there was no default judgment entered |,.¡prior to the confirmation hearing. Accordingly, we find the judgment of default rendered herein to be an absolute nullity.

For the foregoing reasons, the judgment of the trial court is vacated and set aside. This matter is remanded for further proceedings. Costs are assessed to Louisiana Farm Bureau and John and Kristen Evans.

JUDGMENT VACATED AND REMANDED.

ON REHEARING

JjGREMILLION, Judge.

The plaintiffs/appellees, Louisiana Farm Bureau Mutual Insurance Company and John and Kristen Evans, have applied for rehearing to address our application of La.Code Civ.P. art.. 1701 to this matter. We grant rehearing to address this issue. After review, we reverse our prior opinion, reverse the judgment of the city court, and remand for further proceedings.

In our prior opinion, Louisiana Farm Bureau Mutual Insurance Co. v. Groundlink, Inc., 03-947 (La.App. 3 Cir. 2/4/04), 871 So.2d 359, 2004 WL 205813, we vacated the judgment of the city court granting a default judgment in favor of Farm Bureau and the Evans against Kelly Dortlon d/b/a System Services, as a result of the backup of sewage into the Evans’ home. The judgment awarded damages of $4,886.40 to Farm Bureau and $7,183.40 to the Evans. Dortlon appealed and we vacated the judgment because Farm Bureau and the Evans failed to obtain a preliminary default prior to confirming their default judgment, as required by Article 1701.

On rehearing, Farm Bureau and the Evans argue that we erred in applying Article 1701 since this case-was filed in the Natchitoches City Court, rather than in district court. Louisiana Code Civil Procedure Article 4904 provides:

A. In suits in a parish court or a city court,- if the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final judgment in favor of plaintiff may be rendered. No prior default is necessary.
ls>B. The plaintiff may obtain a final judgment only by producing relevant and competent evidence which establishes a prima facie case. When the suit is for a sum due on an open account, promissory note, negotiable instrument, or other conventional obligation, prima facie proof may be submitted by affidavit. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.
C. When the sum due is on an open account, promissory note, negotiable instrument, or other conventional obligation, a hearing in open court shall not be required unless the judge in his discretion directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the judgment or direct that a hearing be held. The clerk of court shall certify that no answer or other pleading has been filed by the defendant. The minute clerk shall make an entry showing the. dates of receipt of proof, review of the reeord, and rendition of the judgment. A certified copy of the signed judgment shall be sent to the plaintiff by the clerk of court.

(Emphasis added).

After reviewing Article 4904, we find that we erred in applying Article 1701 to this matter. Thus, we vacate our prior opinion and will now review this matter pursuant to Article 4904.

DEFAULT JUDGMENT

In his first assignment of error, Dortlon argues that the city court erred in finding that Farm Bureau and the Evans established a prima facie case of liability on his part.

In reviewing default judgments, appellate courts are restricted to determining the sufficiency of the evidence offered in support of judgment. Washington v. Grand Casinos of LA., Inc.-Coushatta, 97-1297 (La.App. 3 Cir. 6/3/98); 715 So.2d 515. Although there is a presumption that the evidence presented supports a default judgment, this presumption does not attach when the record of the confirmation hearing is before the appellate court. Id. In such a case, the reviewing court is able to determine from the record whether the evidence upon which the judgment is based was sufficient and competent. Travis v. Commercial Union Ins., 569 So.2d 115 (La.App. 1 Cir.1990). Thus, because we have the record of the hearing to confirm the default, the presumption does not attach. However, the trial court’s conclusion concerning the evidence’s sufficiency presents a factual issue which the manifest error rule governs. The manifest error standard of review obligates appellate courts to give great deference to the trial court’s findings of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989). We will not reverse factual determinations, absent a finding of manifest error. Id.

Bordelon v. Sayer, 01-0717, p. 3 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1235, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340. “[I]n order to establish a prima facie case to obtain a- default judgment, a plaintiff must establish his case with competent evidence as fully as though each of the allegations in the petition were denied by the defendant.” Moreau v. Griffith, 96-683, p. 3 (La.App. 3 Cir. 12/11/96), 685 So.2d 563, 565 (citing Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La. 1993)). Prima facie evidence is that evidence which convinces the trial court that it is more probable than not that the plaintiff will prevail on a trial of the merits. Id.

After reviewing the record, we find that Farm Bureau and the Evans have failed to establish a prima facie case that Dortlon was liable for the backup of sewage into their home. At the hearing on the default judgment, they presented testimony from John in support of their claim of liability. His testimony fails to establish more probably than not that Dortlon was negligent in boring through their sewer line. Part of his testimony follows:

Q So eventually you filed a claim with your homeowner’s insurance; is that correct?
A After I had contacted System Services and they referred me to Goundlink, Inc. which was also they said they were doing the boring for System Services/Cox whoever they represent, because I originally called Cox, and they sent me to System Services, and I got the run around but yeah, eventually I, after no response from them, I went ahead and contacted my agent and said What do I need to do here, they are not | ¿paying me, and he said Well, let’s file a claim on it and see. Of course, it raises my insurance rates if you file a claim, so I was trying not to do that, but he eventually said let’s just filed a claim and then see if they ever pay us.
THE COURT:. Let me ask you another question, you said something about Mr. Dortlon coming out there. Were you there when he came?
MR. EVANS: Yes, I was. I did talk to him on the phone as well. I had called Cox and they had given me a contact number for him.
THE COURT: Is his business the one that actually was there and doing the boring to install this line?
MR. EVANS: According to what I was told, System Services was a representative for Cox Cable which was installing the lines and they told me that System Services had Groundlink, Inc. was supposedly doing their boring was another company under them that was doing the boring, and they was saying that after having contacted him he had given me another contact name for this Goundlink, Inc., and I had contacted him, and he had told me....
THE COURT: Mr. Dortlon acknowledged to you that he and his business which is basically him, I guess, is the one that actually did the work that created this?
MR. EVANS: Yes, sir.

Farm Bureau and the Evans also introduced into evidence a November 8, 2001 letter from Dortlon, project manager for System Services, to John. In the letter, Dortlon denies liability for this incident, but indicates an interest in working this matter out.

Based on this evidence, we find that the city court erred in finding that Farm Bureau and the Evans established a prima facie case that Dortlon d/b/a System Services was negligent in damaging their sewage line. John’s testimony is very vague; however, he twice testified that the boring on this job was performed by Groundlink. Ijt is also unclear whether the communication lines belonged to System Services or Cox Cable. Accordingly, the judgment of the city court finding Dortlon liable is reversed and the matter is remanded for further proceedings. Based on this finding, Dortlon’s second assignment of error is rendered moot.

CONCLUSION

For the foregoing reasons, the judgment of the city court is reversed and this matter is remanded for further proceedings. The costs of this appeal are assessed against the plaintiffs-appellees, Louisiana Farm Bureau Mutual Insurance Company and John and Kristen Evans.

REHEARING GRANTED; REVERSED AND REMANDED.

      . Article 1701(A) provides in pertinent part:
      If a defendant in the principal demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.