author: J^SULLIVAN, Judge.

text:
    STATE of Louisiana v. Eugene WILSON.
    No. 02-700.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 18, 2002.

      Trent S. Brignac, Assistant District Attorney, Ville Platte, LA, for State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant Eugene Wilson.
    Court composed of NED E. DOUCET, JR., Chief Judge, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   J^SULLIVAN, Judge.

Defendant, Eugene Wilson, is once again before this court. Previously, Defendant challenged his convictions and sentences for theft and forgery. State v. Wilson, 01-625 (La.App. 3 Cir. 12/28/01); 806 So.2d 854, writ denied, 02-323 (La.9/13/02), 827 So.2d 1121. Because of a double jeopardy violation, this court vacated Defendant’s conviction and sentence for theft. His conviction and his sentence for forgery, however, were affirmed. Meanwhile, on January 12, 2001, Defendant was charged as a fourth habitual offender. On May 2, 2002, a habitual offender hearing was held, at which time Defendant asked that his court-appointed attorney, John Larry Vid-rine, be removed from the case because he had previously sent Defendant a collection letter. The trial court removed Mr. Vid-rine as counsel, but ordered him to assist Defendant at the hearing. The trial court denied Defendant’s request for additional time to hire another attorney. After the hearing, the trial court adjudicated Defendant as a third habitual offender and sentenced him to twenty years at hard labor without benefit of probation, parole, or suspension of sentence. Subsequently, pursuant to a motion filed by Mr. Vidrine, the trial court granted Defendant an appeal. Defendant presently challenges his conviction and sentence as a habitual offender by raising the following assignments of error:

(1) the trial court erred in imposing the habitual offender sentence without the benefit of parole;
(2) the trial-court erred in denying his motion to vacate and/or set aside the habitual offender proceedings; and
(3) the trial court erred in imposing a constitutionally excessive sentence.

Facts

The following facts surrounding Defendant’s forgery conviction are taken from this court’s previous opinion in Wilson, 806 So.2d at 856-57 (footnote omitted):

1 ¡¿Defendant, Eugene Wilson, had a contract to transport “Welfare to Work” clients for the Evangeline Parish-area Aca-diana One Stop Program. In May of 1999, Defendant forged the signature of a client who was no longer using the service, and turned in log-sheets bearing the forged signatures to Acadiana One Stop for reimbursement. Based upon the falsified signatures, the program overpaid Defendant between $100.00 and $500.00.

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. After reviewing the present record, we have found several errors patent concerning the habitual offender hearing and the sentence imposed. Because these errors patent are related to Defendant’s assigned errors, we will discuss them together.

The Habitual Offender Hearing

Patent Error: Right to Counsel

The first patent error involves Defendant’s right to counsel at the habitual offender hearing. Shortly after the proceeding began, Defendant announced that he wanted the trial court to remove Mr. Vid-rine as his counsel based upon a collection letter dated December 28, 2000 that Mr. Vidrine sent to him on behalf of Federal Savings Bank. According to Defendant, the letter showed that Mr. Vidrine was biased against him and would be ineffective in representing him.

During the trial court’s questioning of Mr. Vidrine, he admitted that he sent the letter, which was a standard form letter for people in arrears, but that he did not know the status of that particular file. Mr. Vidrine also stated that, if Defendant had not received a citation, he assumed that he had not filed suit on behalf of the bank, although he warned that if the bank requested him to take further action, he would be obligated to comply with the bank’s wishes. Mr. Vidrine said that he sends out ten |3to fifteen similar letters each month, that he did not remember signing that letter, and that he was not biased or prejudiced against Defendant.

The trial court then gave Defendant an opportunity to question Mr. Vidrine, but Defendant declined. When questioned by the State, Mr. Vidrine noted that the amount in question from the letter, $85.98, was not an amount that the bank would have asked him to proceed with.

Thereafter, a colloquy took place in which the trial court reminded Defendant that, when he previously objected to Mr. Vidrine in January of 2002, he had been given an additional ten days to hire the attorney of his choice, Harold Register, and to notify the trial court if Mr. Register would be representing him. When the trial court never heard from either Defendant or Mr. Register, it appointed Mr. Vidrine as Defendant’s counsel of record. After this colloquy, the trial court removed Mr. Vidrine from the case, but ordered him to remain to assist Defendant during the habitual offender hearing. The trial court denied Defendant’s request for additional time to hire another attorney.

In State v. Jones, 96-1581 (La.App. 3 Cir. 6/4/97); 696 So.2d 240, this court held that when a defendant raises a conflict of interest with his attorney before trial, the trial court is required to either (1) appoint separate counsel or (2) ascertain whether the risk of a conflict is too remote to warrant separate counsel.

From the colloquy at the habitual offender hearing, it appears that the trial court attempted to determine whether the risk of conflict warranted appointing separate counsel, but it did not announce a specific finding as to the conflict issue and it did not appoint new counsel. Instead, the trial court removed Mr. Vidrine from 14Defendant’s case and ordered Defendant to proceed without counsel, but with Mr. Vidrine’s assistance.

Although the trial court did not make a specific finding as to Defendant’s claim of bias and prejudice, its denial of the claim was implicit, given that it ordered Mr. Vidrine to “assist” Defendant. Further, we find from the record that Defendant did not prove that Mr. Vidrine was biased or prejudiced against him. However, this court must now decide whether the trial court violated Defendant’s right to counsel when it ordered him proceed unrepresented at the habitual offender hearing.

The United States Supreme Court has held that a defendant has a constitutional right to the assistance of counsel at a habitual offender proceeding. Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442 (1962). A defendant also has a right to be represented by counsel at sentencing. State v. Dupas, 94-1264 (La.App. 3 Cir. 3/6/96); 670 So.2d 667.

When the trial court removed Mr. Vid-rine at Defendant’s request, Defendant stated that he wanted some time for his family to “appoint [him] a lawyer.” The trial court denied this request, and Defendant proceeded to the hearing without representation, but with the assistance of Mr. Vidrine. In State v. Barr, 01-696, pp. 9-10 (La.App. 3 Cir. 12/28/01); 806 So.2d 137, 145 (emphasis added), this court stated the following regarding a claim of the denial of the right to counsel:

Defendant contends he was denied his right to counsel by being forced to represent himself during his trials. In State v. Calhoun, 00-614, p. 5 (La.App. 3 Cir. 11/2/00), 776 So.2d 1188, 1192, quoting State v. Leggett, 363 So.2d 434, 436 (La.1978), we noted:
Both the federal and state constitutions provide that the accused has the right to counsel of his own choosing to defend him on a criminal charge. However, this right does not permit arbitrary action which obstructs orderly procedures in the courts. Rather the right to choose one’s \¡¡attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. Once the trial day has arrived, the question of withdrawal of counsel rests largely within the discretion of the trial judge. This court has frequently upheld the trial court’s denial of motions for continuances or withdrawal of counsel made on the day of trial when defendant is dissatisfied with his present attorney but had ample opportunity to retain private counsel.
The question in this case is whether Defendant’s actions constituted a valid waiver of his constitutional right to counsel. In State v. Batiste, 96-0526, pp. 7-8 (La.App. 3 Cir. 12/11/96), 687 So.2d 499, 503-04, writ denied, 97-0174 (La.6/3/97), 696 So.2d 1003, we wrote:
The magic words “dangers and disadvantages” are not the sine qua non of a knowing and intelligent waiver of the right to assistance of counsel at trial. See State v. Fritcher, 95-0124 (La.App. 1 Cir. 4/4/96); 672 So.2d 295. Although a defendant should be made aware of the dangers and disadvantages of self-representations, there is no particular formula which must be followed by the trial court in determining whether a defendant has waived his right to counsel. State v. Carpenter, 390 So.2d 1296 (La.1980).... The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Hayes, 95-1170 (La.App. 3 Cir. 3/6/96); 670 So.2d 683, citing State v. Harper, 381 So.2d 468 (La.1980).

In Barr, 806 So.2d 137, we found that the defendant impliedly waived his right to counsel at trial by his dilatory actions, where he was given two years to secure counsel, during which time he made several court appearances at which he was represented by three different attorneys. In State v. Batiste, 96-526 (La.App. 3 Cir. 12/11/96); 687 So.2d 499, writ denied, 97-174 (La.6/30/97); 696 So.2d 1003, this court also found an implied waiver of counsel by dilatory actions, where the | defendant had previously obtained three continuances and told the trial court on eight out of eleven appearances that he had retained or would retain counsel. Although we found an implied waiver of counsel, we, nonetheless, reviewed the sufficiency of the evidence to determine whether the defendant was unduly prejudiced by proceeding without counsel.

In State v. Mitchell, 580 So.2d 1006 (La. App. 3 Cir.1991), writ denied, 613 So.2d 969 (La.1993), the defendant appeared for trial without counsel, after he had previously been granted four continuances and had refused to accept court-appointed counsel. The defendant informed the trial court that he had planned to represent himself, but he could not because he was under ‘.‘treatment.” Although the trial court allowed the defendant to represent himself, it also appointed an attorney to assist him. Finding that the defendant waived his right to counsel, we stated:

[T]he defendant was repeatedly given the opportunity to obtain his own counsel or to accept the appointed counsel made available to him. On each occasion, he reversed his previous decision. Additionally, he failed to make any attempt to obtain the independent counsel he insisted upon. This conduct can only be interpreted as an attempt to avoid trial.
Defendant’s conduct in this matter constitutes [an implied] waiver. Moreover, defendant did have counsel available to him throughout the trial and was lent assistance by counsel as needed. Accordingly, we find no denial of the defendant’s constitutional right to counsel.

Id. at 1009.

In the present case, the record supports a finding that Defendant impliedly waived his right to counsel at the habitual offender hearing by his dilatory tactics. A January 4, 2002 minute entry indicates the trial court removed Ahmad Muhammad as Defendant’s counsel because of Mr. Muhammad’s failure to appear in court. The 17trial court appointed Mr. Vidrine to represent Defendant and allowed Defendant ten days to hire another attorney if he chose to do so. Otherwise, the trial court stated that Mr. Vidrine would remain as counsel. A subsequent minute entry dated January 11, 2002, indicates the trial court interrogated Defendant as to Mr. Muhammad’s whereabouts, but Defendant did not know where Mr. Muhammad was located. The trial court allowed Defendant the use of a telephone to call an attorney. According to the minutes, Defendant advised the trial court that he called Mr. Register. The subsequent minute entries, however, show Defendant’s attorney as Mr. Vidrine. We find that these minute entries corroborate the trial court’s summation of Defendant’s opportunities to hire his own counsel. In January of 2002, Defendant was given ten days to hire his own counsel, but he had failed to so by the time of the hearing in May of 2002.

Furthermore, the record reveals that Defendant did not suffer any prejudice from his self-representation. As was the case in Mitchell, Defendant proceeded with the assistance of an attorney. At the habitual offender hearing, the State presented its case with testimonial and documentary evidence, to which both Mr. Vid-rine and Defendant objected. Although one of the documents the State introduced was Mr. Vidrine’s response to the habitual offender bill of information, in which the truth of each allegation was acknowledged, the State did introduce other evidence. Before rendering its ruling, the trial court noted a problem with the proof for one of the prior convictions and found Defendant to be a third, rather than a fourth, habitual offender. After adjudicating Defendant a third habitual offender, the trial court sentenced him to twenty years at hard labor, without benefit of probation, parole, or suspension of sentence. Mr. Vidrine then moved for reconsideration of sentence, which the trial | scourt denied. Mr. Vidrine also advised the trial court that “we will take an appeal as to the sentence,” and did, in fact, file a motion for appeal. Thus, the record before us reveals that Defendant received a full evidentiary hearing during which he was actively assisted by counsel.

Patent Error: Advisement of Rights

Although the trial court advised Defendant of his right to remain silent, it did not advise him that he had the right to have the State prove its case against him at the habitual offender hearing. Nonetheless, we find the error harmless because a hearing was held.

Assignment of Error No. 2: Unreasonable Delay

In this assignment, Defendant argues that the delay between the filing of the habitual offender bill and his adjudication and sentencing as an habitual offender was unreasonable.

On January 12, 2001, Defendant was sentenced on his original convictions for theft and forgery. On that same day, the State filed a habitual offender bill, charging him as a fourth habitual offender. On May 2, 2002, the date on which the habitual offender hearing was held, Defendant filed a pro se “Motion to Vacate and/or Seb-Aside Multiple Offender Proceedings” because of undue delay. When the trial court gave Defendant the opportunity to argue the motion, Defendant stated, “It’s in the Motion.” After stating that it had perused the motion, the trial court denied it without further argument. Later in the hearing, however, the trial court mentioned that Defendant’s original counsel, Mr. Muhammad, had failed to appear at six or seven scheduled hearings. The State then argued the delays in the habitual offender proceedings were the result of either Defendant or his counsel and sought to offer the |flentire record in support of this assertion. The trial court stated it had denied all motions that had been filed and that they were going to proceed with the habitual offender hearing.

In his appellate brief, Defendant contends that the record does not reveal whether the delay in conducting the habitual offender hearing was attributable to him or his trial attorney. He contends that the trial court erred in denying his motion to vacate because of the delay without conducting a hearing. The State responds that any delay was the result of Defendant’s actions and that Defendant declined the opportunity to orally argue his motion to vacate before the trial court.

In State v. Alexander, 503 So.2d 782, 784 (La.App. 3 Cir.1987), we considered the following in finding that a twenty-four month delay between the filing of a multiple offender bill and the hearing was not unreasonable:

This case is governed by principles of due process and not by defendant’s right to a speedy trial guaranteed by United States ConstAmend. VI and La. Const. Art. I, Sec. 16 (1974). Those cited constitutional provisions only apply to the right of an accused to have an expeditious determination of guilt. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Johnson, 363 So.2d 458 (La.1978). It is well settled that the habitual offender proceeding provided by LSA-R.S. 15:529.1 is in the nature of an enhancement of penalty, rather than a prosecution for a crime. State v. Stott, 395 So.2d 714 (La.1981).
Nevertheless, principles of fundamental fairness dictated by the due process clause of the Fourteenth Amendment prohibit inordinate delays in post-conviction proceedings such as imposition of sentence. State v. Duncan, 396 So.2d 297 (La.1981).
In State v. Bell, 471 So.2d 1190 (La.App. 3rd Cir.1985), writ denied, 477 So.2d 97 (La.1985), we stated:
“Under the statute [R.S. 15:529.1], the State is authorized to charge a defendant as a multiple offender ‘If at any time, either after the conviction or sentence, it shall appear that the person convicted of a felony’ has previously been convicted of another felony. La.R.S. 15:529.1 D. It has \wbeen held that the language ‘at any time, either after the conviction or sentence’ means what it says, but that the time for instituting multiple offender proceedings is not unlimited. ”
In the case sub judice the bill accusing defendant of prior convictions was timely filed; it was instituted the day after defendant was convicted of the underlying offense. See State v. Bell, supra, and State v. Wilson, 360 So.2d 166 (La.1978). The question is whether the hearing on the multiple offender bill, heard 24 months following the filing of the bill, constitutes undue delay sufficient to quash the charge.
Although State ex rel. Glynn v. Blackburn, 485 So.2d 926 (La.1986) and State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974), specifically address instances where multiple offender bills were not filed until after an accused served the underlying sentence, they nonetheless stand for the proposition that proceedings against a convicted defendant to enhance his sentence under R.S. 15:529.1 must be completed before he has satisfied his sentence on the underlying felony and discharged from custody for that offense. In the case sub judice the record clearly establishes that defendant was still incarcerated for the underlying felony (simple kidnapping) at the multiple offender hearing. Therefore, we conclude that there was no unreasonable delay in conducting the multiple offender hearing since defendant was notified of the filing of the multiple offender bill immediately upon his conviction for the underlying offense and was still incarcerated when the multiple offender hearing was conducted.
Furthermore, as noted by the trial court, defendant’s unavailability due to his incarceration together with his writ applications were reasons, in part, for the delay in conducting the multiple offender hearing.

In the present case, the habitual offender bill was filed on the same day that Defendant was sentenced to eight years at hard labor on his underlying conviction of forgery. Thus, the bill was filed timely, and the sentencing some fifteen months later occurred before the eight-year term was completed. Defendant was notified of the habitual offender charge immediately after he was sentenced on the underlying felony and was adjudicated and sentenced as an habitual offender before he completed the sentence for forgery.

| -p Furthermore, the record supports a finding that the delay between the filing of the habitual offender bill and the habitual offender adjudication was caused by the defense. The habitual offender bill of information was filed on January 12, 2001. A minute entry dated February 1, 2001 indicates a hearing was scheduled for Defendant to answer as to his habitual offender status. The minutes indicate that Defendant was not present, but that his attorney denied all allegations on Defendant’s behalf. Upon request of the State, however, a hearing on the “Response to the Habitual Offender Bill” was set for March 9, 2001. On March 8, 2001, Defendant filed a “Motion for Recusal,” requesting that both the district attorney’s office and the trial judge be removed from the case.

According to the minutes of May 11, 2001, a hearing was held on a motion to recuse assistant district attorney Anthony L. Walker and on the State’s motion to quash a subpoena duces tecum. The trial court sustained the State’s motion to quash, but found that Defendant failed to present evidence justifying a recusal. Another minute entry dated August 28, 2001 indicates Defendant was present, but his attorney, Mr. Muhammad, was not. The State then moved for the habitual offender hearing and the motion to recuse the district attorney to be reset for October 4, 2001, which the trial court granted. The State also moved for defense counsel to provide proof of his hospital stay. The minutes for October 4, 2001 indicate that Defendant was again present but his attorney, Mr. Muhammad, was not. The minutes indicate that the State moved to set a rule for contempt because of Mr. Muhammad’s failure to appear and that the trial court set the rule for October 15, 2001. The State also notified the court that it had just received a notice of removal of the case that Mr. Muhammad |12filed in the United States District Court, Western District, on October 8, 2001. The record does not indicate whether the Western District accepted the removal.

Another minute entry dated October 29, 2001 indicates that Defendant was present for a recusal hearing, but his attorney was not. The recusal hearing and rule for contempt were reset for November 14, 2001. The minutes of November 14, 2001 indicate that Defendant was present, but his attorney was not. The trial court noted that a “Motion to Recuse Judge Preston Aueoin” was denied by the judges to whom it was submitted. The trial court set the rule for contempt to be heard the following day, November 15, 2001. The minutes for November 15, 2001 again indicate that Defendant was present without his counsel. The trial court reset the matter for November 16, 2001. Once again, the minutes for November 16, 2001 indicate that Defendant was present, but his attorney was not. The trial court ordered hearings set for November 27, 2001. As before, the minutes for November 27, 2001 indicate that Defendant was present, but his attorney was not. The minutes of that date also indicate that the State moved to set the motion to recuse the district attorney for December 18, 2001.

On December 14, 2001, a hearing was held on a “Motion to Dismiss Contempt Rule,” a “Motion to Quash Subpoena,” and a “Rule for Sanctions.” The minutes indicate that Jo Ann Fleming Brown, attorney for Mr. Muhammad, was also present on behalf of herself. The minute entry does not make any notation as to whether Defendant or Mr. Muhammad were present. The minutes for December 18, 2001 indicate that Defendant was present for the rules for contempt and the recusal of the district attorney and that Ms. Brown was present on behalf of Mr. Muhammad and hsherself, but only for the rules for contempt filed against each of them. The trial court ordered the contempt rules and the recusal motion set for January 4, 2002.

The minutes for January 4, 2002 indicate that Defendant was present without an attorney. The trial court found Mr. Muhammad guilty of several counts of contempt. The trial court also refused to grant Mr. Muhammad’s motion to withdraw, but removed him from the case because of his failure to appear and to cooperate. The trial court appointed Mr. Vidrine to represent Defendant and dismissed without prejudice the motion to recuse the district attorney.

The next minute entry dated January 11, 2002, indicates Defendant was present on a rule for contempt because of Mr. Muhammad’s failure to appear on January 4, 2002. The trial court interrogated Defendant as to Mr. Muhammad’s whereabouts, but the Defendant stated he did not know where Mr. Muhammad was located. The trial court once again found Mr. Muhammad in contempt. The minute entry also indicates the trial court allowed Defendant to use the telephone to call an attorney that Defendant identified as Harold Register. At the previous January 4, 2002 proceeding, the trial court had told Defendant he had ten days to notify the court of his desire to hire new counsel. A minute entry dated January 31, 2002 indicates the State moved to file the original response to discovery motions. The trial court so ordered and allowed defense counsel ten days to object in writing. The record indicates a status conference was held on April 16, 2002, at which time the State moved to set the habitual offender hearing and to give Defendant fifteen days to answer. The habitual offender hearing was set for May 2, 2002, and took place as scheduled.

Considering the above, we cannot find that any delay was unreasonable. The case cited by Defendant, State v. Broussard, 416 So.2d 109 (La.1982), is | udistinguishable. In Broussard, the State filed a habitual offender bill of information thirteen months after the defendant’s conviction and sentencing. The supreme court found the delay in instituting the habitual offender prosecution unreasonable since the necessary information regarding the prior felonies was available at the time of the original sentencing, the defendant had already served thirteen months of his sentence and was anticipating parole in a few months, and the State offered no justification for the delay.

Sentencing

Patent Error: Illegal Sentence

Another error patent involves the sentence imposed. The trial court sentenced Defendant to twenty years at hard labor as a third habitual offender when the proper sentence should have been a mandatory life sentence under La.R.S. 15:529.1(A)(1 )(b)(ii), as it read when the instant offense was committed in May of 1999. At that time, the penalty provision for a third habitual offender, found at La. R.S. 15:529.1(A)(l)(b) (emphasis added), provided:

(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:
(i) 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; or
(ii) If the third felony or either of the two prior felonies is a felony 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 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.

|1sAt the habitual offender sentencing hearing on May 2, 2002, the trial court specifically stated that it was sentencing Defendant under subsection (b)(i) above. Because one of Defendant’s prior felonies, distribution of cocaine, is a violation of the Uniform Controlled Dangerous Substance law punishable from five to thirty years at hard labor, however, Defendant should have been sentenced under subsection (b)(ii), which provided for a mandatory sentence of life imprisonment.

However, by Acts 2001, No. 403, § 2, effective June 15, 2001, the legislature amended the penalty provision that mandated life imprisonment for third habitual offenders to read as follows:

(b)(ii) If the third felony and the two prior felonies are felonies defined as a crime violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of the commission of the offense, 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.

La.R.S. 15:529.1(A)(1) (emphasis added).

Under the amended penalty provision, Defendant could not be sentenced to life imprisonment because his present felony (forgery) does not fall within one of the categories warranting a life sentence under amended subsection (b)(ii).

The question, then, is whether the amended penalty provision should apply to Defendant, whose offense was committed before its effective date. Both the fifth and fourth circuits have found that Act 403 should not apply to those defendants who committed crimes before the Act’s effective date. See State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02); 817 So.2d 377, and State v. Houston, 02-255 (La.App. 4 Cir. 4/24/02); 818 So.2d 253. Further, Section 6 of Act 403 specifically states that 11fithe Act “shall only have prospective effect.” Although this provision could be interpreted to apply the Act to all sentences imposed after its effective date of June 15, 2001, the supreme court did not endorse this interpretation in State v. Sugasti, 01-3407 (La.6/21/02); 820 So.2d 518.

In Sugasti, the trial court imposed a suspended sentence for possession of heroin, a violation of La.R.S. 40:966(C). The State appealed the sentence, arguing that, at the time of the commission of the offense, that statute did not allow for a suspended sentence. (Act 403, which also amended La.R.S. 40:966(0 to permit a suspended sentence, had become effective just six days before the defendant was sentenced.) Citing well-settled case law, the supreme court stated that, “[a]lthough 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, 820 So.2d at 521. The court particularly noted that the legislature “specifically provided that the provisions of Act 403 ‘shall only have prospective effect.’ ” Id. (quoting Acts 2001, No. 403, § 6). The supreme court reasoned that, if the legislature intended the more lenient sentencing provisions to take effect immediately, “language signifying that intent could have easily been incorporated into the act.” Id.

In Sugasti, the supreme court also distinguished Act 403 from the provisions of Acts 2001, No. 1163, which amended the sentencing provisions of La.R.S. 14:98(E), relating to driving while intoxicated:

The new provisions in Act 1163 retained the sentencing ranges provided for third and fourth offense driving while intoxicated violations, but radically changed the way the offender may or must serve the sentence imposed by the court. The statute encompassing the penalty provisions specifically states “upon conviction” the defendant shall he punished to a specific term. Additionally, the act did not include language l17specifying “prospective only” application. Act 1163 simply went into effect on August 15, 2001.

Id. (citing State v. Mayeux, 01-3195 (La.6/21/02); 820 So.2d 526) (footnote omitted) (emphasis added).

The habitual offender sentencing provision falls somewhere between those at issue in Sugasti and Mayeux. As previously noted, Act 403 states that it shall have prospective effect only. The habitual offender statute itself, however, contains the “upon conviction” language relied upon by Mayeux. La.R.S. 15:529.1 (emphasis added) provides in 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....

Since the statute contains the “upon conviction” language, it is unclear whether the amended penalty provision would apply to those persons who were convicted after June 15, 2001. However, this issue need not be resolved in the present case since Defendant was convicted of forgery on October 17, 2000, well before the effective date of the amended provision.

Considering the above, we find that the amended penalty provision for a third habitual offender does not apply to the present case. Thus, the pre-amendment provision applies, and Defendant should have received a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence.

In State v. Williams, 00-1725 (La.11/28/01); 800 So.2d 790, the supreme court held that an appellate court may recognize an illegally lenient sentence as a patent error under La.Code Crim.P. art. 882(A), which provides: “An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” In Williams, 800 So.2d at 797, the supreme court recognized that |is“a defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence.” Hence, “[w]hen an illegal sentence is corrected, even though the corrected sentence is more onerous, there is no violation of the defendant’s constitutional rights.” Id. at 798. As was done in Williams, we will vacate Defendant’s sentence and remand for resentencing in compliance with La. R.S. 15:529.1(A)(l)(b)(ii), as it read when the instant offense was committed. We note that upon remand, Defendant will be given the opportunity to argue that a sentence below the mandatory minimum sentence is appropriate under State v. Dorthey, 623 So.2d 1276 (La.1993), and State v. Johnson, 97-1906 (La.3/4/98); 709 So.2d 672.

Assignments of Error Nos. 1 and 3: Restriction of Parole Eligibility and Excessive Sentence

Because of our recognition of the trial court’s failure to impose the mandatory minimum sentence of life imprisonment, we find that these assignments of error are rendered moot.

Decree

For the above reasons, Defendant’s adjudication as a third habitual offender is affirmed; however, his sentence is vacated, and the case is remanded for resentencing in accordance with this opinion.

AFFIRMED IN PART; SENTENCE VACATED; AND REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    Merita G. ADAMS v. ST. JOHN THE BAPTIST PARISH SCHOOL BOARD.
    No. 02-CA-938.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Rehearing Denied Jan. 16, 2003.

      David A. Hamilton, Baton Rouge, LA, for Plaintiff-Appellee.
    Patrick M. Amedee, Delise, Amedee & Hall, Metairie, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   | .EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by the St. John the Baptist Parish School Board from a judgment reversing its decision to terminate a tenured teacher on grounds of willful neglect of duty and dishonesty. For the following reasons, we affirm that judgment.

The following facts are undisputed. Merita Adams, plaintiff-appellee, began teaching chemistry in the St. John school system in 1993 and eventually was given tenure. During 1997 she began to suffer from work related stress. She consulted Dr. Padmini Nagaraj, a psychiatrist, who diagnosed her condition as major depression with psychotic features. She was treated with anti-depressants, but her condition did not immediately improve. In the spring of 1998 plaintiff went on paid sick leave. Although she showed improvement from time to time, the doctor’s notes showed that by the summer she was still suffering from depression.

Plaintiff apparently did not feel that she would be able to return to high school teaching for the 1998-1999 year and at first requested an unpaid leave for professional improvement. When that request was denied, she requested an unpaid sick leave and supported this request by a report from Dr. Nagaraj which stated 13that she was still suffering from depression with psychotic features. This leave was granted.

During the time between the above requests, plaintiff accepted a one year teaching job at Southeastern Louisiana University. At the time she felt that teaching college students would be much less stressful than those in high school and that she could handle that position. Her psychiatrist concurred in that conclusion. Plaintiff did not inform the St. John School Board about this job during the sick leave nor was she ever asked what she would be doing during that year.

By the next school year the Board had learned about the college teaching job, and when plaintiff asked to return to her high school job she was informed that proceedings would be initiated to fire her. A hearing was held on December 9, 1999, and the result was that plaintiff was terminated for willfully neglecting her duties and being dishonest. The Board’s first conclusion was based on the theory that if plaintiff was able to teach then she had a duty to teach in the St. John system, and her not doing so constituted a willful breach of that duty. Its second conclusion was based on the idea that she had some obligation to inform it of what she was doing during the unpaid medical leave period.

Plaintiff sought relief in the district court, and after a hearing the court reversed the Board and ordered her reinstated with back pay. The Board now appeals that judgment.

In Allo v. Horne, 95-713 (La.App. 5th Cir.3/18/96), 672 So.2d 961, this court followed a long line of cases which have applied the following the standard of review of school board decisions pursuant to La. R.S. 17:443. The criterion for judicial review of a school board’s action is whether there is a reasonable basis for the board’s determination which is supported by substantial evidence. The reviewing court must not substitute its judgment for that of the board nor interfere |4with the board’s good faith exercise of discretion. Thus, the court’s inquiry must be limited to a determination of whether the action of the board was in accordance with the formalities of tenure law and was supported by substantial evidence, or was an arbitrary decision.

In the present case there are no substantial evidentiary disputes. Plaintiff was diagnosed with a serious psychological problem requiring psychiatric treatment and was approved for a one semester paid medical leave on the basis of this illness. There is no dispute about this leave. She subsequently requested an additional one year unpaid leave, supported by an opinion from her treating psychiatrist, on grounds that she did not feel ready to return to the high school class room mainly because of the perceived unruliness of the students. This leave was also granted on the basis of her continuing psychological problems. She was never asked what she would be doing during the course of that year, nor did she offer the information that she would be teaching at the college level. The only evidence bearing on the issue of her fitness to teach in college, but not in high school, was her and her psychiatrist’s belief that she could then handle the more mature college students, but was not yet ready for those in high school. The Board cited no rule or policy which would prohibit tenured teachers on unpaid sick leave from engaging in any other gainful employment during that time. Nor did it show that such leave would be denied were it established that the teacher intended to work at another job during the leave.

In Coleman v. Orleans Parish School Board, 93-0916 (La.App. 4th Cir., 2/5/97), 688 So.2d 1312, the court noted that before a finding can be made that a tenured teacher willfully neglected her duty, it must first be shown that the teacher had knowledge of the duty either through warnings from supervisors or from general knowledge concerning the responsibilities and conduct of teachers. As noted above, there is no evidence of record here that the Board had any policy |ficoncerning what duties teachers on unpaid sick leave might have to the Board or to the students in the system. Sick leave on its face implies that the teacher will not be in attendance, and unpaid sick leave means that the teacher is not receiving anything of value from the Board.

Similarly, the finding that plaintiff was dishonest is not based on any policy which would preclude a teacher on unpaid sick leave from earning money, nor any rule which would have precluded the granting of such leave if the teacher were planning to be employed otherwise. That being so, there was no apparent requirement that she tell the board what she might be doing while on leave. Thus, for plaintiff not to have offered that information cannot be said to constitute an act of dishonesty.

It is clear, of course, that what the Board’s decision was actually based on was its belief that plaintiff was not medically disabled from teaching at the high school level and that she and her treating psychiatrist had fabricated that story so that plaintiff could take what she deemed to be a more attractive position. The difficulty with this position is that there is no evidence of record to substantiate it. The problem here is not that there was conflicting evidence which the Board resolved in a particular way. Had that been the case, then this court would have been required to affirm the Board’s action because it would have been based on a reasonable view of the evidence. Instead, the problem is that the only evidence of record is that presented by plaintiff and her treating psychiatrist which established that plaintiffs psychological condition was such that teaching at the college level was medically advisable, while teaching at the high school level was not.

| fiConsidering the above circumstances, we agree with the trial judge that there was no substantial evidence to show that plaintiff either willfully neglected her duties or was materially dishonest, and that the decision of the Board to terminate her must be reversed. We therefore affirm the judgment of the district judge so ruling.

AFFIRMED.


author: PITTMAN, C.J., for the Court. McRAE, P.J., DIAZ, J.,

text:
    Kade MASCARELLA, v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    No. 2000-FC-01838-SCT.
    Supreme Court of Mississippi.
    Aug. 22, 2002.
    Rehearing Denied Jan. 2, 2008.
    Ray T. Price, Hattiesburg, Attorney for Appellant.
    Michael Wayne Baxter, Charles G. Copeland, Stephen K. Thomas, Attorneys for Appellee.
   PITTMAN, C.J., for the Court.

¶ 1. Kade Mascarella filed suit against United States Fidelity and Guaranty Company (“USF & G”) in the United States District Court for the Southern District of Mississippi alleging wrongful denial of insurance benefits due under a policy of uninsured motorist insurance, as well as bad faith denial of such benefits. Both parties subsequently filed motions for summary judgment. The district court granted USF & G’s motion for summary judgment and denied Mascarella’s motion. Mascarella v. United States Fid. & Guar. Co., 71 F.Supp.2d 598 (S.D.Miss.1999). Mascarella thereafter perfected an appeal to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit, pursuant to Rule 20 of the Mississippi Rules of Appellate Procedure, issued a Certificate to this Court certifying the following question:

Whether an injured insured is entitled to stack the underinsured motorist coverage of other vehicles covered under his fleet policy thereby making the third-party tortfeasor’s vehicle an un-derinsured motor vehicle.

FACTS

¶ 2. Kade Mascarella was injured when the car he was driving was struck by a car driven by Alexander Sutherland. Mascar-ella was employed by Development Concepts, Inc., and was on the job, driving a car owned by Development Concepts, at the time of the collision. The parties agree the collision occurred as the result of Sutherland’s negligence. Mascarella incurred medical expenses in excess of $65,000.00 and claims that he will incur substantial future medical expenses to adjust hardware in his back and ankle. He has a permanent limp and walks with the assistance of a cane.

¶ 3. Sutherland was insured by Progressive Insurance Company with liability coverage limits of $100,000 per person. The automobile which Mascarella was driving was covered under a fleet insurance policy issued by USF & G to Development Concepts, Inc. Eight vehicles are covered by that policy with uninsured motorist coverage of $25,000 per accident per vehicle. Separate uninsured motorist premiums were charged for the eight vehicles.

¶ 4. Mascarella, with the approval of USF & G, settled with Sutherland by accepting his $100,000 policy limits. Subsequently, USF & G paid Mascarella $25,000 constituting the limits of the UM coverage of the car Mascarella was driving. Thereafter USF & G took the position that it wrongfully paid the $25,000, as the Sutherland vehicle met neither the statutory definition nor the policy definition of an uninsured/underinsured vehicle. Mascarella contends that the Sutherland vehicle was underinsured and therefore he is entitled to seek additional coverage from USF & G. Mascarella claims that he should be entitled to “stack” the UM coverage limits from all eight vehicles insured under the USF & G policy in order to have Sutherland’s vehicle qualify as underinsured. This coverage, when compared to the $100,000 underlying liability coverage on the Sutherland automobile, results in the Sutherland vehicle being underinsured to the extent of $100,000. It is this additional coverage, less the $25,000 already paid by USF & G, that Mascarella is seeking.

DISCUSSION

I. WHETHER AN INJURED INSURED IS ENTITLED TO STACK THE UNDERINSURED MOTORIST COVERAGE OF OTHER VEHICLES COVERED UNDER HIS FLEET POLICY THEREBY MAKING THE THIRD-PARTY TORTFEASOR’S VEHICLE UN-DERINSURED.

¶ 5. There are two questions this Court addresses in an insurance “stacking” case and the first is a threshold question: 1) whether a tortfeasor’s insured vehicle qualifies as underinsured and, if so, 2) whether the injured party is entitled to “stack” the UM coverage of the vehicles listed under his own policy to fully compensate him for his damages. Wickline v. United States Fid. & Guar. Co., 530 So.2d 708, 712 (Miss.1988). The question certified to this Court concerns the threshold question: whether a particular vehicle is underinsured. At this stage, there is no need to distinguish between Class I and Class II insured parties. The only requirement is that the injured party is insured by the policy from which he seeks recovery or meets the definition of “insured” found at Miss. Code Ann. § 83-11-103(b) (1999). See generally Box v. State Farm Mut. Auto. Ins. Co., 692 So.2d 54, 58 (Miss.1997); Guardianship of Lacy v. Allstate Ins. Co., 649 So.2d 195, 198 (Miss.1995); State Farm Mut. Auto. Ins. Co. v. Davis, 613 So.2d 1179, 1180-81 (Miss.1992). Therefore, the class distinctions of insured parties will be ignored in this analysis.

¶ 6. The certified question asks this Court to interpret a definition of an “uninsured motor vehicle” found in the Mississippi Motor Vehicle Safety Responsibility Law. According to the statute, an uninsured motor vehicle is defined as:

An insured motor vehicle, when the liability insurer of such vehicle has provided limits, of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage ...

Miss.Code Ann § 83-ll-103(c)(iii). The question would have this Court define the scope of “the limits applicable to the injured person provided under his uninsured motorist coverage” and determine if the stacked limits included within the scope result in Sutherland’s vehicle qualifying as uninsured.

¶ 7. This Court examined in detail this section of the statute’s language in Wickline v. United States Fid. & Guar. Co., 530 So.2d 708 (Miss.1988). In that case, the heirs of a passenger killed in a collision with a parked car sought to have the moving car declared underinsured in order to recover damages from the deceased’s UM coverage. Id. at 710. The moving car was insured under a policy which provided $10,000.00 in bodily injury liability coverage and $10,000.00 in UM coverage. Id. The deceased was separately insured under two different insurance policies providing UM coverage of $10,000.00 each. Id. The Court held that “the limits applicable to the injured person provided under his uninsured motorist coverage” included the UM coverage provided by the two separate policies insuring the deceased. After stacking these limits with the UM coverage of the moving vehicle and comparing the sum with the vehicle’s bodily injury liability limit, the moving vehicle qualified as uninsured. Id. at 712. The case’s holding is instructive:

If an injured person is insured under more than one policy of uninsured motorist insurance, the limits of each such policy are “applicable” to him. Harthcock v. State Farm Mut. Auto. Ins. Co., 248 So.2d 456 (Miss.1971). If he his injured while riding as a passenger, the uninsured motorist coverage of the vehicle in which he is riding, in addition to that of his own vehicles, is “applicable to the injured person.” Southern Farm Bureau Cas. Ins. Co. v. Roberts, 323 So.2d 536 (Miss.1975).

Wickline, 530 So.2d at 713. See also Washington v. Georgia Am. Ins. Co., 540 So.2d 22, 25-26 (Miss.1989). The Court next considered this question in Thiac v. State Farm Mut. Auto. Ins. Co., 569 So.2d 1217 (Miss.1990). The facts of Thiac are unique and are examined below.

¶ 8. Rachael Thiac was injured when the Porsche in which she was a passenger left the road and hit a tree. Id. at 1218. State Farm insured the Porsche in the name of its driver and the policy provided $25,000.00 of liability for bodily injury and $25,000.00 in UM coverage. Id. The driver of the car also owned and insured a Datsun through State Farm under a separate policy. That policy provided UM coverage of $10,000.00. Id. Thiac had no applicable insurance of her own. Id. at 1219. State Farm paid Thiac the $25,000.00 limit in liability coverage but refused to pay the UM benefits on the Datsun when Thiac made a demand for them. Id. at 1218. State Farm filed a complaint for declaratory judgment, and Thiac countered with a motion for summary judgment. The trial court entered an order denying further relief to Thiac and denied her motion for summary judgment. Id. This Court affirmed the trial court’s actions. Id. at 1221.

¶ 9. According to Thiac:

In determining whether an insured vehicle is underinsured, we have compared the limits of liability coverage on that vehicle to the uninsured limits provided through the injured party’s own coverage.
The rule of law which this Court has established in interpreting our statutory definition of an underinsured motorist is: for the purpose of qualifying the host vehicle as underinsured, a guest passenger is permitted to stack her oivn UM coverage with the UM coverage on the host vehicle.

Id. at 1219-20 (emphasis in original). Thiac, relying upon the rule announced in Wickline, placed emphasis on limiting the UM coverage applicable to the insured to the UM coverage of the “host vehicle.” Wickline, citing the rule from Southern Farm Bureau Cas. Ins. Co. v. Roberts, held that the coverage applicable to the injured insured is limited to “the uninsured motorist coverage of the vehicle in which he is riding.” Wickline, 530 So.2d at 713 (emphasis added). Even a broad reading of the rule in each of these cases reaches the same result: only the UM coverage of the vehicle in the accident which injures the insured can be included when stacking all the UM coverages applicable to an injured insured. See also Fidelity & Guar. Underwriters, Inc. v. Earnest, 699 So.2d 585, 590 (Miss.1997); Dixie Ins. Co. v. State Farm Mut. Auto. Ins. Co., 614 So.2d 918, 920-21 (Miss.1992); State Farm Mut. Auto. Ins. Co. v. Davis, 613 So.2d 1179, 1182 (Miss.1992).

¶ 10. The policy behind such a ruling was elaborated upon in Thiac:

In the current case, Thiac had no insurance of her own. To allow her to stack Ellzey’s Datsun for the purposes of determining whether the Porsche was un-derinsured would be contrary to the legislative purpose in adopting the un-derinsured motor vehicle concept as a part of our statutory scheme. As pointed out in Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 442 (Miss.1989), Thiac had the means to protect herself against tortfeasors who carry insurance which is legally sufficient but inadequate to compensate the damages sustained. This is the policy behind our legislature’s incorporation of the “un-derinsured” concept into our legislative scheme. Thiac, “like all other similarly situated motorists, could have contracted with her carrier for excess coverage beyond the statutory minimum, thereby rendering the tortfeasor”, Ellzey, un-derinsured per § 83 — 11—103(c)(iii).

Thiac, 569 So.2d at 1221. In a telling parallel, Mascarella, like Thiac, is not separately insured. It is clear from our case law that we do indeed allow an injured insured to stack his own UM coverage with that of the vehicle in which he was riding. However, our analysis cannot end here.

¶ 11. Mascarella contends that the insurance policy is ambiguous. We disagree, as the two clauses cited by Mascarella comport to the law in this state. Under the heading “ADDITIONAL DEFINITIONS,” an underinsured motor vehicle is defined as follows:

[A]n underinsured motor vehicle is a motor vehicle or trailer for which the sum of all liability policies at the time of an “accident” provides at least the amounts required by the applicable law where a covered “auto” is principally garaged but their limits are less than the sum of:
(1) The limit of liability for uninsured motorists coverage applicable to the vehicle the “insured” was “occupying” at the time of the “accident”; and
(2) Any other limit of liability for uninsured motorists coverage applicable to the “insured” as a named insured or “family member”

Mascarella offers the following language from the “LIMIT OF INSURANCE” section of the policy to demonstrate ambiguity:

Regardless of the number of “autos”, “insured’s”, premiums paid, claims made or vehicles involved in the “accident”, the most we will pay for all damages resulting from any one “accident” is the limit of UNINSURED MOTORIST COVERAGE shown in the declarations or schedules. If there is more than one covered “auto”, our limit of insurance for any one “accident” is the sum of the limits for those “autos” you own which are covered “autos”.

From its context, this second passage clearly answers the second question: yes, an insured who was injured by an underin-sured vehicle can stack the UM coverage limits of all the vehicles covered by the policy to allow for full recovery of damages. Since the question before us involves only the threshold question, this second passage sheds no light on the matter.

¶ 12. Having examined the law, we now note the facts of this case are different from the question certified to us. The question asks whether an injured insured can stack the UM coverages from his fleet to have the tortfeasor’s vehicle declared underinsured. The fleet in the facts presented to us does not belong to Mascarella. It belongs to and is insured by Development Concepts. Our case law, as analyzed above, restricts the stacking of UM coverages to the accident vehicle and an injured insured’s fleet. Mascarella has no fleet, and he is not otherwise insured. These facts preclude Mascarella from stacking the UM coverage of the other seven vehicles in Development Concepts’s fleet of vehicles to have Sutherland’s vehicle qualify as uninsured. This is true, regardless of whether the insurance policy covering the fleet of vehicles owned by Development Concepts is ambiguous since the above analysis involves an interpretation of what the statute will allow and not what the policy will allow. Even so, the language of the policy is in accord with the opinions examined above and therefore the statute. Therefore, Mascarella’s attempt to stack the UM coverages of cars in a fleet which is not his must fail.

CONCLUSION

¶ 13. The wording of the certified question therefore warrants two answers. Based on the text of the statute, this Court’s prior decisions in Wickline, Thiac, Davis, Dixie Ins. Co., and Earnest, and the policy’s own language, one answer to the question now before the Court is that an injured insured may stack the UM coverage of vehicles covered under his own fleet policy with the UM coverage of the vehicle in which he is a passenger in order to have the third party tortfeasor’s vehicle declared underinsured. However, Mascar-ella did not insure the vehicle in which he was traveling at the time of the collision nor the “fleet” of vehicles listed on the policy. The “fleet” in these circumstances is actually insured by Development Concepts. Therefore, Mascarella can only stack the UM coverage of the vehicle in which he was traveling with his own UM coverage, as examined above. Mascarella, having no UM coverage of his own, has nothing to stack with the UM coverage of the car he was driving in order to compare that sum with Sutherland’s bodily injury liability limits. Sutherland’s vehicle is therefore not underinsured.

¶ 14. Under these facts, an injured insured may not stack the UM coverage of the other “fleet” vehicles not involved in the accident to have a third-party tortfea-sor’s vehicle declared underinsured where the injured party did not insure the fleet in question.

¶ 15. CERTIFIED QUESTION ANSWERED.

SMITH, P.J., WALLER, EASLEY AND CARLSON, JJ., CONCUR. COBB, J., CONCURS IN PART. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J. COBB, J., JOINS IN PART. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.

McRAE, P.J.,

Dissenting.

¶ 16. I agree with Justice Diaz that Mascarella is an intended beneficiary of his employer’s uninsured motorist policies covering the fleet of vehicles. Further, I agree that the policy language clearly includes the sum of the uninsured motorist coverage for all automobiles in the fleet for any one vehicle, and as such, Mascarella should be allowed to stack uninsured motorist coverage in this case.

¶ 17. I write further to note that the majority rules only on the contract and overlooks that the statute is part of the contract. Insurance companies cannot write around the statute. Such action is legislative in nature and should be addressed to that body, not by writing contracts in such a way as to circumvent applicable statutes. The uninsured motorist coverage statutes do not preclude stacking and in effect allow it. See Miss. Code Ann. §§ 83-11-101 to -111 (1999). We have held that the statute by its own terms sets the parameters for insureds. See McDaniel v. Shaklee U.S., Inc., 807 So.2d 393, 398-99 (Miss.2001).

¶ 18. Miss.Code Ann. § 88 — 11—103(b) defines the term “insured” for the purposes of any policy’s uninsured motorist provisions as follows. “The term ‘insured’ shall mean the named insured ... and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies, and a guest in such motor vehicle to which the policy applies, or the personal representative of any of the above.... ” When the policy does not state the terms, we fill in the blanks in accordance with the statute. Hence, not only does the contract in this case allow aggregation or stacking, but the statute identifies who is an insured. Masearella clearly falls within the statutory definition of insured.

¶ 19. Therefore, in light of the policy language in this case and the applicable statutes, Masearella should be allowed to stack the uninsured motorist coverage of his employer as an insured and intended beneficiary of the policy. Accordingly, I respectfully dissent.

DIAZ, J, JOINS THIS OPINION. COBB, J., JOINS THIS OPINION IN PART.

DIAZ, J.,

Dissenting.

¶ 20. I respectfully dissent to the majority’s conclusion that Masearella cannot stack the uninsured motorists policies that cover the fleet vehicles. The majority states that, under the Mississippi cases that have allowed stacking, the rule on stacking has been limited so as to only include: (1) the uninsured motorist coverage of the host vehicle in which the injured party was riding; and (2) the party’s own personal uninsured motorist coverage, if the party has his own coverage for any other cars. The majority correctly states that.an injured insured can stack his own UM coverage on other cars with the UM coverage of the vehicle in which he was riding. However, the majority incorrectly concludes that Masearella has no other UM coverage under the facts of the instant case.

¶ 21. First, as an agent/employee of Development Concepts, Masearella is the beneficiary of uninsured motorist policies that are intended to cover the employees and authorized drivers of eight automobiles owned by Development Concepts. The UM coverage in this case is in fact Mascarella’s oim coverage. The coverage benefits Masearella, not Development Concepts. Whether Development Concepts provides the coverage' for Masearella as a benefit and/or whether Masearella provides coverage for himself are not the crucial questions that determine whether the policies can be stacked. The more pertinent question is simply to ask whether Masearella is covered as an intended insured under any applicable uninsured motorist policies. Indeed, Masearella is an intended beneficiary of the uninsured motorist policies covering the fleet vehicles. As stated by the majority, Masearella was on the job and driving a fleet vehicle at the time of the accident.

¶ 22. Second, the language in this particular uninsured policy clearly and unambiguously provides, “[i]f there is more than one covered ‘auto,’ our limit of insurance for any one ‘accident’ is the sum of the limits of those ‘autos’ you own which are covered ‘autos’.” According to this language, the coverage is extended to include the sum of the uninsured motorist coverage for all eight automobiles owned by Development Concepts; therefore, stacking the uninsured motorist benefits would be appropriate. Masearella, as an authorized driver and agenVemployee of Development Concepts, should be allowed to stack UM coverage for his fleet. For these reasons, I respectfully dissent.

GRAVES, J., JOINS THIS OPINION.

      . USF & G asserts that the nature and extent of Mascarella's injuries are disputed, but that such injuries are irrelevant and not necessary to the pending legal issue of whether the Sutherland vehicle was underinsured. The trial court did not address the issue of whether Mascarella was damaged more than $100,000.

      . This Court does not distinguish cases dealing with "fleet” policies from any other insurance cases, but the term will be used throughout to avoid confusion. See Harris v. Magee, 573 So.2d 646, 652-53 (Miss.1990); Cossitt v. Nationwide Mut. Ins. Co., 551 So.2d 879 (Miss.1989).

      . The moving car's owner had an insurance policy under which the accident vehicle and four other cars were covered. In Wickline this Court had an opportunity to determine if the deceased could "stack” the UM coverage from each of the other four cars to have the accident vehicle declared underinsured. The Court apparently passed on the chance to hold so as the issue went unaddressed.


author: WALLER, Justice, for the Court: EASLEY, JUSTICE,

text:
    The HARRISON COUNTY BOARD OF SUPERVISORS v. CARLO CORPORATION, INC.
    No. 2000-CA-02050-SCT.
    Supreme Court of Mississippi.
    Aug. 29, 2002.
    Rehearing Denied Jan. 2, 2003.
    Karen J. Young, Gulfport, attorney for appellant.
    Britt R. Singletary, Gary Dale Thrash, Jackson, Glen K. Till, Jr., attorneys for appellee.
   ON MOTION FOR REHEARING

WALLER, Justice, for the Court:

¶ 1. The motion for rehearing is granted. The former opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Carlo Corporation, Inc., was delinquent in paying the 1997 ad valorem taxes on its personal property assessed by Harrison County, Mississippi. The Board of Supervisors hired an attorney, John Wood-field, to collect the taxes. Woodfield wrote one letter to Carlo, and Carlo remitted the delinquent taxes and interest thereqn to Harrison County.

¶ 3. Harrison County also assessed $79,912.11 in attorney’s fees against Carlo. Because it believed this amount to be excessive, Carlo remitted $3,000, an amount which it believed to be reasonable, to Harrison County, and it asked the Harrison County Board of Supervisors to compromise or otherwise reduce the amount of attorney’s fees. After the Board refused to do so, Carlo filed a bill of exceptions and assignment of errors in the Circuit Court of the Second Judicial District of Harrison County, Mississippi.

¶ 4. The circuit court found that the actions of the Board were arbitrary and capricious and were not supported by the substantial evidence in the record. It further found that “the amount of attorney’s fees ... is excessive, unreasonable, and utterly exorbitant.... ” We affirm these findings, but reverse the circuit court’s finding that Carlo should not pay any collection fees whatsoever.

DISCUSSION

¶ 5. When considering the decision of a board or agency, the standard of review is not de novo; rather, we (and any reviewing court) determine whether “the Board’s decision was (1) unsupported by substantial evidence, (2) arbitrary and capricious, (3) beyond the powers of the Board to make, or (4) violative of a statutory or constitutional right of [the complaining party].” Rowzee v. Public Employees’ Ret. Sys., 777 So.2d 664, 666-67 (Miss.2000) (citing Sprouse v. Miss. Employment Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994)).

¶ 6. We have previously stated a clear guideline for whether an action is arbitrary or capricious:

“Arbitrary” means fixed or done capriciously or at pleasure. An act is arbitrary when it is done without adequately determining principle; not done according to reason or judgment, but depending upon the will alone, — absolute in power, tyrannical, despotic, non-rational, — implying either a lack of understanding of or a disregard for the fundamental nature of things.
“Capricious” means freakish, fickle, or arbitrary. An act is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles....

McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312, 322 (Miss.1992) (quoting Miss. State Dep’t of Health v. Southwest Miss. Reg’l Med. Ctr., 580 So.2d 1238 (Miss.1991)) (citation omitted). We went on to delineate the necessity of rules against arbitrary and capricious actions:

The reviewing court is charged to study the record and the legislative facts to which the challenged order points and divine a rational basis upon which the administrator may have acted. The standard invokes the rule of relevant resemblances and proscribes unprincipled discrimination between and among those similarly situated. It condemns ad hoc decision-making and, because it is a standard of judicial review, imports an imperative that administrators say at least minimally why they do what they do so someone can see whether it be arbitrary or capricious.

Id.

¶ 7. The Board’s decision to automatically charge the 25% fee for all collection activities is arbitrary and capricious. It is true that the statute authorizes a charge not to exceed 25%. Miss.Code Ann. § 19-3-41(2). It is also true that the statute has no language that limits or restricts the Board from assessing the full amount to the delinquent taxpayer. Common sense, however, dictates that when the Legislature states that something is not to exceed a particular amount that it does not dictate that amount should always be applied. Otherwise, when the Legislature states that life imprisonment is the maximum penalty appropriate for a crime, it would be appropriate for judges or juries to automatically sentence an offender to that sentence. Of course, that would be nonsensical.

¶ 8. As the United States Supreme Court noted in the recent controversy regarding chads and the intent of the voter, “[t]he problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable. ...” Bush v. Gore, 531 U.S. 98, 106, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). In the case at bar, standards are necessary to avoid such ridiculous charges; a fee of $79,912.11 is excessive for the task of writing one letter. Common sense, practicality and appropriateness, in accordance with our Rules of Professional Conduct, so dictate.

¶ 9. The Attorney General has noted in an opinion regarding delinquent garbage collection fees, that the imposition of an additional sum of not to exceed 25% “is an additional amount owed by the individual, and does not reflect a mandatory percentage of a contingency fee, which is left to the discretion of the board of supervisors in negotiating its” Miss. Atty. Gen. Op. No.2000-0648, Sumners, Nov. 10, 2000 (emphasis added). This is the appropriate view, that the 25% is not a mandatory and that the Legislature intended for boards of supervisors to use their discretion ih determining the appropriate fee. Further, the statute expressly states that “[t]he Mississippi Department of Audit shall establish rules and regulations for use by counties in contracting with persons or businesses under the provisions of this subsection.” Miss.Code Ann. § 19 — 3— 41(2). These rules do not set up any guidelines for determining an appropriate fee for collection work; however, it is appropriate and practical to require boards of supervisors to utilize guidelines in assessing this fee.

¶ 10. Rule 1.5 of the Mississippi Rules of Professional Conduct states:

(а) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(б) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

(Emphasis added.) We have previously stated in regard to determining attorney’s fees that the reasonableness of such fees “shall be fixed by reference to the standards afforded in our Code of Professional Conduct....” Kaiser Invs., Inc. v. Davis, 538 So.2d 427, 430 (Miss.1989). While this is a different situation, reference to the currently effective Rules of Professional Conduct is still appropriate. The Legislature could not have intended to throw reasonableness out the window by setting a maximum allowable fee rate. As we have noted, it is important to have guidelines so a reviewing court may determine whether an action was arbitrary and capricious. See McGowan, 604 So.2d at 322. Here, no guidelines exist, and the result is ad hoc decision-making at its worst. The Harrison County Board of Supervisors has acted unreasonably, and its setting of a standard 25% assessment for an attorney’s fee is an arbitrary and capricious act.

¶ 11. The circuit court ordered that Carlo pay no attorney’s fees whatsoever. We believe that some attorney’s fees are due to the Board because some work was performed. The attorney’s fee should be reduced to a reasonable sum, more in line with the work performed by the attorney in his collection efforts.

CONCLUSION

¶ 12. We affirm the Harrison County Circuit Court’s judgment that the Board’s decision to charge $79,912.11 for collection fees was arbitrary and capricious. We reverse the circuit court’s judgment that no attorney’s fees should be assessed, and we remand for the circuit court to determine and award reasonable attorney’s fees for collecting the delinquent taxes.

¶ 13. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

EASLEY, JUSTICE,

DISSENTING:

¶ 14. In my view, the majority errs in affirming the circuit court’s determination that the actions of the Board were arbitrary and capricious and that Carlo Corporation, Inc. is not obligated to pay the assessed collection fee. While the majority reverses the circuit court’s judgment that no fee should be assessed and remands for a determination of a reasonable collection fee, the majority fails to view the clear wording of the statute.

¶ 15. This Court in Thornton v. Wayne County Election Comm’n, 272 So.2d 298, 301 (Miss.1973), held that on appeal to the circuit court a board ease is not heard de novo. “The circuit court reviews the record made before the board, of the testimony made or proffered, to determine whether or not the acts and orders of the board are reasonable and proper or arbitrary or capricious or beyond the power of the board to make or whether they violated any constitutional right of the complaining party.” Id. “Courts may interfere only where the action of the board is arbitrary or capricious and is without support in the substantial credible evidence.” Cook v. Board of Supervisors, 571 So.2d 932, 936 (Miss.1990) (citations omitted).

I.

¶ 16. The circuit court was incorrect in its ruling that Miss.Code Ann. § 27-49-1 (1995) was applicable in the case sub judi-ce. Likewise, the circuit court and the majority are incorrect in their determination that the Board’s decision of December 14, 1998, was arbitrary and capricious and not supported by the substantial evidence in the record. Miss.Code Ann. § 27-41-11 states that the tax collector will enforce and that delinquent taxpayers “shall be required to pay, in addition to the amount of taxes then due, all other fees, penalties and costs prescribed by law for failure to pay taxes when due, and in addition to the interest prescribed in Section 27-41-9 of this chapter.”

¶ 17. Miss.Code Ann. § 19-3-41(2) states the Board can contract with a private attorney and “[a]ny such contract may provide for payment contingent upon successful collection efforts or payment based upon a percentage of the delinquent amount collected; however, the entire amount of all delinquent payments collected shall be remitted to the county and shall not be reduced by any collection costs or fees. There shall be due to the county from any person whose delinquent payment is collected pursuant to a contract executed under this subsection an amount, in addition to the delinquent payment, of not to exceed twenty-five percent (25%) of the delinquent payment for collections made within this state .... ” (emphasis added).

¶ 18. Clearly, the County can assess a fee up to twenty-five percent (25%), pursuant to Miss.Code Ann. § 19-3-41(2). The statute does not prohibit a fee set at twenty-five percent, rather the statute only prohibits a fee over twenty-five percent. Further, the statute has no language that limits or restricts the Board from assessing the full amount to the delinquent taxpayer. It is important to note that the statute requires that the county receives all delinquent taxes, interest and associated fees from collections and any other costs from the taxpayer. The taxpayer, according to the statute, does not pay the collections agent, whether it is a private attorney or a collection agency.

¶ 19. The facts of the case sub judice show that Carlo did not pay its 1997 ad valorem taxes by February 1, 1998, as required by Miss Code Ann. § 27-41-1. On October 13, 1998, Woodfield sent a notice to Carlo stating that the personal property tax was delinquent and requested immediate payment. On November 24, 1998, Carlo paid the delinquent taxes and interest to the tax collector in the amount of $322,580.97 by check and a second check in the amount of $3,000.00 to the Harrison County Tax Collector for payment of reasonable attorney’s fees to Woodfield. On December 1, 1998, the Tax Collector declined to accept the payments and stated that additional interest and attorney fees now in the amount of $81,378.38 was due.

¶ 20. Carlo appealed the decision to the Board, which addressed the issue on December 14, 1998. During the session, the Board accepted the $322,580.97 payment for the taxes and interest, however, the Board did not reduce the collection fees.

¶ 21. Carlo failed to pay the 1997 ad valorem taxes in accordance with the February 1 deadline as set forth in Miss.Code Ann. § 27-41-1. In addition, the fee was properly assessed against the taxpayer, Carlo, and payable to the County pursuant to Miss.Code Ann. § 19-3411(2). The assessed amount did not exceed the parameters of the statute.

II.

¶ 22. For the above reasons, I respectfully disagree with the majority opinion. The statutes are clear and straightforward in this case. The assessed collection fee is permitted pursuant to the statutes. Accordingly, I would reverse and render the circuit court’s ruling and require Carlo Corporation, Inc., to pay the assessed collection fee.