author:
1(WEIMER, Justice.
      hCALOGERO, Chief Justice, | JOHNSON, Justice,

text:
    STATE of Louisiana v. Mustafa H. MUHAMMAD.
    No. 2003-K-2991.
    Supreme Court of Louisiana.
    May 25, 2004.

      Charles C. Foti, Jr., Attorney General, Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Counsel for Applicant.
    Margaret S. Sollars, Thibodaux, Counsel for Respondent.
   1(WEIMER, Justice.

This matter is before the court on the limited issue of whether a multiple offender adjudication must be completed prior to the defendant serving the sentence imposed on the underlying offense. We must also consider whether the holdings in the per curiam opinion of this court in State ex rel. Glynn v. Blackburn, 485 So.2d 926 (La.1986), and the opinion in State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974), are correct.

Following conviction and on the day of sentencing of the defendant for 17 counts of access device fraud, the State filed a habitual offender bill charging the defendant as a multiple felony offender. Due to a series of events including two appeals by the defendant in which the court of appeal vacated the multiple offender adjudication and sentence and remanded for further proceedings, defendant completed his full sentence on the underlying charge prior to completion of the multiple offender proceeding. Defendant perfected a third appeal. Finding the trial [2court was precluded from imposing a multiple offender sentence after defendant completed the underlying sentence, the court of appeal reversed. State v. Muhammad, 03-419 (La.App. 5 Cir. 9/30/03), 857 So.2d 1223.

This court granted the State’s application for writ of certiorari to consider whether, under the circumstances of this case, defendant’s adjudication as a multiple offender was timely. State v. Muhammad, 03-2991 (La.1/16/04), 864 So.2d 612.

For reasons that follow and to the extent that the opinions are inconsistent with this opinion, we overrule the bright line rule articulated initially in State ex rel. Williams v. Henderson, and followed in State ex rel. Glynn v. Blackburn, reverse the decision of the court of appeal, reinstate defendant’s adjudication and life sentence as a fourth felony multiple offender, and remand to the court of appeal for consideration of the other issues raised by defendant on appeal.

FACTS AND PROCEDURAL HISTORY

Mustafa H. Muhammad was charged by bill of information filed on April 29, 1998, with 17 counts of access device fraud. A jury found him guilty as charged on March 18, 1999. The trial court sentenced defendant to two years each on counts 1 through 16, with the sentences to run concurrently. On count 17, defendant was sentenced to two years to run consecutively to the sentences imposed on counts 1 through 16. At the original sentencing on April 9, 1999, the State informed defendant of its intent to file a habitual offender bill. Following the multiple offender hearing conducted on August 9, 1999, the court indicated the defendant was a fourth felony offender, vacated the original sentence on count 1 and sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of ^sentence. The court further ordered that the sentence on count 17, originally ordered to run consecutively to the sentences on counts 1 through 16, continue to run consecutive.

The defense made an oral motion for appeal and reconsideration of sentence following the sentencing. It was not until March 2, 2000, that a written order of appeal was signed. On appeal, defendant argued: the trial court erred in failing to suppress physical evidence and defendant’s statement; erred in allowing the State to introduce “other crimes” evidence without proper notice; the evidence was insufficient to support a conviction; and the State failed to meet its burden of proof that defendant was a multiple offender. In an unpublished opinion, State v. Muhammad, 00-1239 (La.App. 5 Cir. 2/14/01), 786 So.2d 985, writ denied, 01-0984 (La.2/8/02), 807 So.2d 862, the court of appeal affirmed the convictions and | ¿sentences, set aside the habitual offender adjudication and resentencing, reinstated the vacated sentence on count 1, and remanded for further proceedings.

On March 27, 2001, the State refiled a multiple offender bill of information charging the defendant as a fourth felony offender. The defendant pled not guilty on April 6, 2001. Defense counsel filed a motion to quash the multiple bill which the parties argued on April 27, 2001. The trial court denied the motion and defendant expressed intent to seek writs on the ruling. Meanwhile, the multiple bill hearing was set for May 18, 2001. Although the trial court had previously denied the motion to quash, the defendant was allowed to introduce evidence during the hearing of the calculated release date in the absence of a multiple bill in support of his motion to quash the bill of information. The State requested the court adopt the testimony from the prior multiple offender hearing and sentence defendant in accordance with the findings. Defense objected and moved for a full hearing.

Review of the transcript indicates the following observation from the trial court:

Okay. We’ve discussed this in chambers for quite a bit of time and thrashed out the legal ramifications, and the Court is of the opinion that all of the facts involved were submitted at the original multiple bill hearing. And based upon the facts presented, I made a factual and legal conclusion that Mr. Mustafa Muhammad was, in fact, a fourth felony | .^offender that the State had proved three prior felony convictions, two of which were crimes of violence in the State of California.
Because of the technicality on the bill situation, as was mentioned by Ms. Miller [assistant district attorney], the appellate court has sent this back. I believe it would be a — and I don’t believe it would be a violation of anyone’s rights; I think it would be in the interest of judicial economy — that the facts from the prior hearing, which are all of record in this case, be used, and we not have an additional hearing.

Thus, the court, over defendant’s objection, adopted the facts and testimony taken at the first hearing on August 9, 1999, and found the defendant to be a fourth felony offender. The court vacated the previous sentence on count 1 and sentenced the defendant to life in prison at hard labor without probation, parole, or suspension of sentence. The defense gave oral notice of the intent to appeal.

On October 26, 2001, the court signed an order permitting defendant’s private counsel to withdraw from the representation of defendant and appointed the Louisiana Appellate Project to represent defendant. On October 30, 2001, the trial court granted defendant an out of time appeal returnable to the court of appeal on January 14, 2002.

In the appellate court, defendant alleged the trial judge erred in sentencing him as a fourth felony offender, arguing the bill of information was not timely filed as he had been released from custody at the time of the filing. He argued in the alternative that the State failed to meet its burden of proof on the three predicate felonies.

The court of appeal found reversible patent error. At the multiple offender hearing, the trial judge based his finding and enhancement of sentence on the evidence submitted in the first habitual offender hearing. The court of appeal found | fithe defendant was entitled to a hearing during which the State must prove the allegations of the habitual offender bill. LSA-R.S. 15:529.1(D)(2). The adjudication as a fourth felony offender and the enhanced sentence were vacated and the case was again remanded to the district court. State v. Muhammad, 02-338, p. 6 (La.App. 5 Cir. 10/16/02), 831 So.2d 358, 360.

On remand, the trial court conducted another multiple offender hearing on December 17, 2002, following which defendant was again adjudicated a fourth felony offender and sentenced to life in prison. Defendant appealed, arguing the State was not entitled to file an amended habitual offender bill of information after he had completed his term of incarceration and the trial court erred when it failed to quash the amended bill. The State argued the multiple bill proceedings had been conducted in a timely fashion and any delay was mostly attributable to defendant’s two prior appeals.

The decision of the court of appeal indicates the court found the filing of the multiple offender bill timely. The court noted the original habitual offender bill was filed on the day defendant was sentenced; therefore, defendant was immediately placed on notice that the State intended to enhance his sentence. The court of appeal found “no dilatory tactics or bad faith on the part of the State” and the “delay was principally caused by the movement of defendant’s case through the appellate process.” Muhammad,, 03-419 at 5, 857 So.2d at 1226.

Nevertheless, feeling constrained by and citing State ex rel. Glynn v. Blackburn, 485 So.2d 926 (La.1986), the court of appeal ruled that the proceedings to enhance defendant’s sentence must be completed before the sentence for the underlying felony is satisfied and defendant is discharged from custody for that |7offense. The court of appeal reversed the ruling of the lower court and held the trial court should have granted defendant’s motion to quash the habitual offender bill of information. Muhammad, 03-419 at 5-6, 857 So.2d at 1226.

The State applied for writ of certiorari on the ruling which this court granted.

DISCUSSION

The State’s writ application was granted to consider the continuing validity of a jurisprudential requirement that proceedings under a habitual offender bill filed pursuant to LSA-R.S. 15:529.1 be completed prior to the time defendant satisfies the original sentence imposed by the trial court. The limited issue for consideration by this court involves a determination of whether the adjudication and resentencing of a defendant as a multiple offender must be completed prior to defendant’s completion of the underlying sentence.

In order to resolve this issue, we begin by examining the language of the statute that provides for enhancement of penalty for habitual offenders. LSA-R.S. 15:529.1.

| inThe language of the statute pertinent to this case is found in Section (D)(1)(a) which provides: “If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state ... the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction or adjudication of delinquency.” The same section further provides: “Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true.” (Emphasis provided.)

Review of the statute reveals the absence of a prescriptive time period for completion of the habitual offender proceeding. Wording of the statute indicates the legislature contemplated the multiple offender proceeding could be brought against an individual who was not incarcerated.

In reversing the trial court ruling in this matter, the court of appeal relied on this court’s per curiam in State ex rel. Glynn v. Blackburn which cited State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974), for the proposition that [ t proceedings to enhance a sentence under LSA-R.S. 15:529.1 must be completed before the defendant satisfies his sentence on the underlying felony and has been discharged from custody for that offense. In State ex rel. Williams v. Henderson, this court was confronted with determining whether the language of the statute in LSA-R.S. 15:529.1(D) (“If, at any time, either after conviction or sentence, ... ”) meant that an enhanced penalty could be imposed after a defendant served his sentence and after nineteen months elapsed following the sentence imposed on the underlying charge. In State ex rel. Williams v. Henderson,, this court considered and limited the holding of State v. George, 218 La. 18, 48 So.2d 265 (1950) to the facts of that case declining to extend George beyond its facts.

The facts in State ex rel. Williams v. Henderson were distinguishable from those in George. Henderson was sentenced to two and one half years on May 26, 1971. He appealed the conviction which was affirmed. Following the denial of a rehearing on June 13, 1972, the district attorney filed a bill of information charging petitioner as a fourth felony offender on August 15, 1972 (two months after defendant’s appeal was final). Defendant was discharged as having served his sentence under the good túne act of 1972 on September 20, 1972. It was not until | ^December 21, 1972, (approximately 4 months after filing the habitual offender bill and 19 months after original sentencing) that defendant pleaded guilty to being a third felony offender, at which time his prior sentence was vacated and an enhanced sentence imposed. Subsequently, the defendant sought habeas corpus relief which was denied. An application for writ of certiorari was granted and this court, two justices dissenting, vacated the judgment of the district court and ordered petitioner discharged from custody. The court noted the resentencing proceeding had been delayed due to the filing of motions and requests for continuances by defense counsel. Nevertheless, this court held the statute required a proceeding to have a defendant sentenced as a multiple offender be completed before the defendant serves the sentence which is to be enhanced. State ex rel. Williams v. Henderson, 289 So.2d at 77.

The instant case is factually distinguishable from State ex rel. Williams v. Henderson in that the defendant in this case received notice on the date of his original sentencing that the State intended to enhance his penalty pursuant to the multiple offender statute. In fact, the State filed the bill of information charging the defendant as a multiple felony offender on the same day he was sentenced. Any expectation defendant may have had in the finality of his initial sentences totaling four years at hard labor ended four months later on August 9, 1999, when the court | -^adjudicated him a fourth offender and sentenced him to life in prison at hard labor. Due to remand following two appeals, defendant has been adjudicated a fourth felony offender three times, twice within the term of his original commitment.

In deciding this ease, the court of appeal felt constrained by the bright line rule established in State ex rel. Williams v. Henderson. A fallacy of the bright line rule of State ex rel. Williams v. Henderson and State ex rel. Glynn v. Blackburn is that a defendant could delay the appellate process, as defendant did in this matter (see footnotes 4 and 8), and have that delay count against the State. While we do not suggest the defendant intentionally delayed this matter, one should not claim the benefit of delay when one is the cause of the delay. In addition to the normal delay in the court of appeal, defendant’s case was dormant between sentencing and out of time appeals on two occasions — each in excess of six months.

A combination of a relatively short underlying sentence and delays in the appellate process occasioned by defendant seeking review of his sentence on two prior occasions served to deprive the State of the opportunity to pursue habitual offender proceedings to finality before the defendant’s discharge date was reached on the underlying sentence. In lieu of a bright line rule which has no statutory basis, we find an evaluation of the circumstances surrounding the multiple offender proceeding should be conducted on a case by case basis. In the process, the court can assure that defendant’s due process rights are protected. Any inordinate delays or bad faith on the part of the State to prejudice the defendant in any fashion would be subject to the scrutiny of the court.

| ^Although the statute does not prescribe a time within which the bill must be filed, this court has made a determination that the district attorney must file the habitual offender bill “within a reasonable time.” Relying on the language of the statute regarding the filing, as opposed to the completion of a habitual offender proceeding, this court previously held that the statute “does not allow an indefinite time in which the district attorney may file the multiple offender bill once the necessary information is available.” State v. Toney, 02-0992 (La.4/9/03), 842 So.2d 1083, citing State v. McQueen, 308 So.2d 752, 755 (La.1975). The court in McQueen relied on defendant’s constitutional right to a speedy trial and the provision of LSA-C.Cr.P. art. 874 which requires criminal sentences be imposed without unreasonable delay. This court concluded the multiple offender bill must be filed “within a reasonable time after the necessary information is available to the appropriate district attorney.” McQueen, 308 So.2d at 755. See also State v. Broussard, 416 So.2d 109, 110 (La.1982). An important factor to consider in determining whether the bill was filed timely requires a determination of when the district attorney acquired the knowledge that defendant is a multiple offender. Id. The determination of whether the hearing is held within a reasonable time hinges on the facts and circumstances of the specific case. See Toney, 02-0992 at 5, 842 So.2d at 1086.

As a general matter, the Supreme Court has set forth four factors for courts to consider in determining whether a defendant’s right to a speedy trial has been violated. Those factors are the length of the delay, the reasons for the delay, the accused’s assertion of his right to speedy trial, and the prejudice to the accused resulting from the delay. Barker v. Wingo, 407 U.S. 514, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972). This court adopted the Barker factors in State v. Reaves, 376 So.2d 136 (La.1979). While these factors are neither definitive nor dis-positive in the context of a habitual offender proceeding, they are instructive.

We acknowledge that the Sixth Amendment, by analogy, may superimpose a limitation; however, a case by case evaluation is warranted to determine whether the proceeding has been promptly concluded. See State ex rel. Williams v. Henderson, 289 So.2d at 77. Similarly, relevant speedy trial considerations may be used to assist the court in a determination of whether any delays are unexplained or extraordinarily long. Abusive or vindictive delay should not be tolerated. The longer the State delays filing and is responsible for postponing completion of the habitual offender proceeding, the more likely it is that the delay will be charged against the State.

We find the requirement superimposed upon the statute by the decision in State ex rel. Williams v. Henderson wandered too far from the language of the statute. In that opinion, the majority acknowledged: “Perhaps the literal reading of the language of the statute supports the broader implications of George; nevertheless, other considerations convince us that the present interpretation is to be preferred.” State ex rel. Williams v. Henderson, 289 So.2d at 77. Although the court recognized the resentencing procedure was delayed due to motions and requests for continuances by defense counsel, the court held the proceeding was not timely and thus the State could not resentence the defendant. Id.

The court in State ex rel. Williams v. Henderson established a bright line rule that superimposed a requirement for completion of the proceedings not mentioned in the statute. Nothing in the statute dictates the result of State ex rel. Williams v. Henderson, a fact acknowledged by the majority opinion and pointed out in the dissent authored by Justice Summers.

There are two concepts at issue in this case — the timely filing of a multiple offender bill of information and the timely hearing or completion of the proceeding. We agree with the court of appeal that the State did not delay in filing the enhancement charge and there has been no showing of bad faith on the part of the State. The error occurred when defendant was adjudicated a fourth felony offender although the only bill of information in the record charging him as a multiple felony offender actually charged him as a third felony offender. Counsel for defendant eloquently argued defendant should not be penalized for prevailing on appeal. Although counsel for defendant argued the State caused delays during the course of the proceedings, review of the record indicates no inordinate delays on the part of the State. We agree that defendant should not be penalized for appealing; we are simply applying the law as it is written.

Defendant knew from the date of his original sentencing that the State intended to charge him as a multiple offender. Within four months of sentencing, the first multiple offender hearing was conducted and defendant resentenced as a multiple offender. Due to remand following two appeals, defendant was not finally adjudicated as a multiple offender until approximately two months after the second | i7remand and four months after his full sentence completion date. Part of the delay is attributed to defense counsel. Defendant was never released from prison only to have the State thereafter file enhancement proceedings. There is nothing in the record to establish any abusive or vindictive behavior on the part of the State.

Following a thorough review of the provisions of the statute, as well as the cases of George, State ex rel. Williams v. Henderson, and State ex rel. Glynn v. Blackburn and the facts of the present case, we conclude there is no reason for this court to jurisprudentially provide a bright line deadline by which the habitual offender proceeding must be completed. Although the statute has been amended on several occasions since its enactment, the legislature has failed to establish such a time frame. To the extent the majority opinion in State ex rel. Williams v. Henderson is inconsistent with views expressed herein, it is overruled. Additionally, the per curiam opinion of State ex rel. Glynn v. Blackburn is overruled.

CONCLUSION

For the foregoing reasons, we overrule State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974), to the extent it establishes a bright line rule, and State ex rel. Glynn v. Blackburn, 485 So.2d 926 (La.1986); we reverse the ruling of the court of appeal in State v. Muhammad, 03-419 (La.App. 5 Cir. 9/30/03), 857 So.2d 1223, reinstate defendant’s adjudication and life sentence as a fourth felony offender, and remand to the court of appeal for consideration of the other issues raised by defendant on appeal.

REVERSED AND REMANDED.

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

JOHNSON, J., dissents and assigns reasons.

hCALOGERO, Chief Justice,

concurring.

I concur. The result is correct, although I am not convinced that it is necessary to overrule 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). I have no difficulty with the majority’s resolution of this case. I agree that the State did not delay in filing the enhancement charge against the defendant and thus the defendant was put on notice from the date of his original sentencing that the State was charging him as a multiple offender.

I concur here, however, to point out that State ex rel. Williams v. Henderson involved a slightly different factual scenario which led to the court’s correctly concluding that the proceeding in that case was not held timely and the State was without power to resentence the defendant. The majority acknowledges that the present case is distinguishable from State ex rel. Williams v. Henderson yet still feels compelled to overrule it, albeit to the limited extent that it purportedly establishes a “bright line” rule, as well as State ex rel. Glynn v. Blackburn, which follows State ex rel. Williams v. Henderson. I would not overrule these cases, for they were correctly decided.

In State ex rel. Williams v. Henderson, the court was faced with a scenario | awherein the district attorney delayed the filing of the multiple offender bill until the defendant had exhausted his appeals. Ultimately, the enhanced penalty was not imposed until after the defendant had served his sentence and approximately nineteen months after the initial sentencing on the underlying charge.

Since there is a qualified overruling of those cases, and because in this case the prosecution moved swiftly in filing a multiple offender bill of information, I join the majority opinion in its decision in this case.

| JOHNSON, Justice,

dissenting.

As an initial matter, I must point out that this defendant has been sentenced to serve a sentence of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence for access device fraud, i.e., “identity theft.” In my mind, such a harsh sentence for a nonviolent offense runs afoul of the Eighth Amendment to the United States Constitution and may be more cruel than other countries which mandate chopping off a hand as the penalty for theft.

Moreover, at the time that this defendant was adjudicated a multiple offender, he was to be discharged from state custody on August 23, 2002. However, he was not released, as the habitual offender proceedings had been initiated. It was not until December 17, 2002, nearly four months after his release date, that defendant was re-adjudicated and re-sentenced as a habitual offender.

Although the habitual offender law, contained within LSA-R.S. 15:529.1 does | ¡mot contain a prescriptive period for the completion of habitual offender proceedings, this Court has historically required the State to complete habitual offender proceedings within a reasonable time. In State ex rel. Williams v. Henderson, 289 So.2d 74, 77 (La.1974), this Court set forth a bright line rule that “a proceeding to have a defendant sentenced as a multiple offender must be completed before the defendant serves the sentence which is to be enhanced.” Additionally, in State ex rel. Glynn v. Blackburn, 485 So.2d 926 (La.1986), the defendant had served his two year sentence before he was adjudicated a multiple offender. This Court, citing Williams, unequivocally stated, “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 been discharged from custody for that offense.”

Like the defendants in Williams and Glynn, this defendant’s sentence had been served before his adjudication as a multiple offender. I do not believe that there is any compelling reason to overrule Williams and Glynn, particularly where the defendant was not convicted of a violent offense.

For these reasons, I agree with the court of appeal’s determination that defendant’s life sentence should be vacated.

      . Due to credit for time served, defendant's original diminution of sentence date was listed as August 24, 2000. The expiration of defendant’s full-term date was August 23, 2002.

      . The record reveals the multiple offender bill charging defendant Mustafa Muhammad as a third felony offender was filed on April 9, 1999.

      . The reasons dated and signed April 9, 1999, by the trial judge indicate the defendant was found to be a fourth felony offender and sentenced under the provisions of LSA R.S. 15:529.1 (A) (c)(ii) to life imprisonment without benefit of probation, parole, or suspension of sentence. However, review of the transcript of the hearing indicates the trial judge found defendant's most recent conviction of the 17 counts of access device fraud made him a fourth felony offender, but when the judge imposed sentence on the defendant, he did so as follows:
      [H]e comes under the provisions of 15:529 A — large capital A, part 2, small b, small 2. "If the third felony or either of the two prior felonies is a felony defined as a crime of violence under Revised Statute 14:2, (13), or a violation of the Uniform Controlled Dangerous Substance 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.”

      . From sentencing on August 9, 1999, until an order of appeal was signed on March 2, 2000, a period of seven months, defendant's case was inactive as no action was taken by defense counsel to advance the oral motion for appeal which had been made at the sentencing hearing.

      . The court of appeal found reversible error patent. The habitual offender bill of information charged defendant as a multiple felony offender listing two prior felony convictions. At the hearing, evidence was introduced to prove that defendant had been convicted of three prior felonies and was thus a fourth felony offender. The court of appeal found the trial court had improperly sentenced defendant as a fourth felony offender.

      . The portion of the decision affirming the underlying access device fraud convictions and original sentences is final. Only the portion of the decision regarding the propriety of the multiple offender proceeding remains viable.

      . During the first appeal, the State alleged that an amended multiple offender bill of information charging defendant as a fourth felony offender had been filed on June 25, 1999, but was not contained in the record. The State unsuccessfully attempted to file an affidavit to that effect along with an unsigned copy of the amended bill with the court of appeal.

      . Again, defendant’s case was inactive for eight months following the May 18, 2001 hearing as no action was taken by defense counsel to advance an appeal until defendant’s counsel filed a motion to withdraw as counsel of record and have the Louisiana Appellate Project appointed as counsel to represent defendant on appeal.

      . We note the' trial judge has the right to take judicial cognizance of any prior proceeding which is part of the same case he has previously tried. State v. Jones, 332 So.2d 461, 463 (La.1976). The same trial judge presided over the jury trial and both habitual offender proceedings.

      . Mr. Muhammad is subject to the provisions of the statute in effect as of the commission of the offense, which in this instance was April 1998. Although LSA-R.S. 15:529.1 has been amended twice since the commission of the instant offense, with amendments effective August 15, 2003, and June 15, 2001, those amendments do not apply to this case. State v. Parker, 03-0924 (La.4/14/04), 871 So.2d 317.
      On the date of the commission of the offense for which defendant was charged and convicted, LSA R.S. 15:529.1 provided as follows:
      A. (1) Any person who, after having been convicted within this state of a felony or adjudicated a delinquent under Title VIII of the Louisiana Children's Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of this Subsection, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
      (a)If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction;
      (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.
      (c) If the fourth or subsequent 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 the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; or
      (ii) If the fourth or subsequent felony or any of the 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 of 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.
      (2)(a) Attempted first degree murder.
      (b) Attempted second degree murder.
      (c) Manslaughter.
      (d) Armed robbery.
      (e) Forcible rape.
      (f) Simple rape.
      (g) Second degree kidnapping.
      (h) A second or subsequent aggravated battery.
      (i) A second or subsequent aggravated burglary.
      (j) A second or subsequent offense of burglary of an inhabited dwelling.
      B. It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as and adjudged to be a third offender, or that an offender has been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime.
      C. This Section shall not be applicable in cases where more than ten years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, and the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods.
      D. (l)(a) If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state or adjudicated a delinquent under Title VIII of the Louisiana Children's Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of Subsection A of this Section, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction or adjudication of delinquency. Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations Eire true. If he denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and he shall be given fifteen days to file particular objections to the information, as provided in Subparagraph (b). The judge shall fix a day to inquire whether the offender has been convicted of a prior felony or felonies, or adjudicated a delinquent for an offense or offenses specified above as set forth in the information.
      (b) Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.
      (2) Following a contradictory hearing, the court shall find that the defendant is:
      (a) A second offender upon proof of a prior felony conviction or adjudication of delinquency as authorized in Subsection A.
      (b) A third offender, upon proof of two prior felony convictions or adjudications of delinquency as authorized in Subsection A, or any combination thereof.
      (c) A fourth offender, upon proof of three or more prior felony convictions or adjudications of delinquency as authorized in Subsection A, or any combination thereof.
      (3) When the judge finds that he has been convicted of a prior felony or felonies or adjudicated a delinquent as authorized in Subsection A, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted or adjudicated, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination. Either party may seek review of an adverse ruling.
      E.Whenever it shall become known to any superintendent or prison, probation, parole, police, or other peace officer, that any person charged with or convicted of a felony has been previously convicted or adjudicated delinquent within the meaning of this Section, he shall immediately report the fact to the district attorney of the parish in which the charge lies, or the conviction has been had.
      F. The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, or of any chief officer of any parish or county jail in this state or any other state of the United States, or of the clerk of court of the place of conviction in the state of Louisiana, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.
      G. Any sentence imposed under the provisions of this Section shall be without benefit of probation or suspension of sentence.
      H. A person shall not be qualified to be a candidate for elected public office or take elected office if that person has been convicted of a felony, whether convicted within this state or convicted under the laws of any other state or of the United States of a crime which, if committed in this state would be a felony, and has not received a pardon therefor.

      . In State v. George, this court held the statute permitted an information to be filed and an accused sentenced as a multiple offender even after the original sentence had been served. Because the time spent in jail awaiting trial exceeded the sentence imposed, the defendant in George was discharged the same day he was sentenced. Relying on the language of the statute,
      'If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony * * *, it shall be the duty of the District Attorney of the Parish in which subsequent conviction was had, to file an information * * *. Whereupon, the court in which such subsequent conviction was had, shall cause the said person, whether confined in prison or otherwise, to be brought before it * * George, 218 La. at 30, 48 So.2d at 269, the court ruled the habitual offender proceeding was timely. Had the court ruled otherwise, the State would have been precluded from charging the defendant as a multiple offender. The record indicated the State filed a multiple offender bill and the defendant was resen-tenced approximately one month after imposition of the original sentence.

      . In State ex rel. Williams v. Henderson the defendant argued Section (D)(3) contemplates completion of the proceedings prior to defendant serving the entire sentence. The statute provides, "the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated.” As the defendant argued in State ex

        rel. Williams v. Henderson, unless a portion of the original sentence remains executory, there is nothing left for the court to vacate before sentencing the defendant as a habitual offender.
      We fail to find this language sufficiently specific to require a bright line rule that the habitual offender proceeding be completed before serving the underlying sentence; this language simply contemplates the defendant will receive credit for the time served before the habitual offender sentence is imposed.

      . The court found defendant had been convicted of two counts of burglary in 1978, robbery in 1983, and robbery in 1989 prior to the current conviction for 17 counts of access device fraud.

      . La. Const. Art. I, § 16 (1974); U.S. Const., amend. VI.

      . As observed by Justice Summers in dissent:
      The plain language of the Habitual Offender Law permits an accusation for a previous conviction "at any time, either after conviction or sentence”. La.R.S. 15:529.1, subd. D.

        In the exercise of its sovereign power the State's Legislature authorized the bringing of this accusation "at any time, either after conviction or sentence”, and it is an abuse of this Court’s power to refuse to apply the law as written. Habitual offender laws are designed to protect society from the continuing activities of recividist offenders. ...”

      . "Access device” means a person’s social security number, driver's license number, birth date, mother’s maiden name, checking account numbers, savings account numbers, personal identification numbers, electronic identification numbers, digital signatures, or other means of account access that can be used to obtain anything of value, whether contemporaneously or not. LSA R.S. 14:70.4(D)(1).


source: Caselaw Access Project

author: ^VICTORY, J.

license: Public Domain

text:
    STATE of Louisiana v. James TAYLOR.
    No. 2003-K-1834.
    Supreme Court of Louisiana.
    May 25, 2004.

      Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Valentin M. Solino, Kristen A. Keller, for applicant.
    Sherry Watters, New Orleans, for respondent.
   ^VICTORY, J.

We granted this writ to determine whether the trial judge abused his discretion in denying a challenge for cause of a prospective juror such that reversal of defendant’s conviction and sentence for second-degree murder by the court of appeal was warranted. After reviewing the record and the applicable law, we find that the trial judge did not abuse his discretion in denying defendant’s challenge for cause and therefore reverse the judgment of the court of appeal and reinstate defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On June 8, 2000, defendant James Taylor (“Taylor”) was indicted for the second-degree murder of Walter Ray, in violation of La. R.S. 14:3o.1. The State alleged that Taylor shot Ray, a co-worker, three times at a convenience store shortly after the two had engaged in a physical altercation at work. Taylor claimed self-defense. Taylor was found guilty as charged by a twelve-person jury on September 6, 2002, and was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Taylor appealed his conviction and sentence alleging, among other things, that the trial court erred in denying his challenge for cause of prospective juror No. 8, | ¡¿David Lee Oliver. After the initial voir dire of the first panel of jurors, which was not transcribed, defendant challenged Mr. Oliver for cause:

I think he’s a challenge for cause, Judge. In voir diring [sic] him virtually every reply — I don’t know if he’s just trying to get off the jury or if he is sincere in his beliefs. Basically, every major threshold issue was contrary responses.
THE COURT:
I’m going to grant cause as to Mr. Oliver. I think that he’s just — has a hard time — I’ll allow you to bring him back but I’m not going to go into a big— I think he has a hard time grappling with the issue and the doctrine of self-defense.
Do you want to ask him a question?
[STATE ATTORNEY]:
I just want to make a quick argument if I could, Judge. His—
THE COURT:
I know what your argument is. You already made it at the bench, so if you want to ask him a question- — -
[STATE ATTORNEY]:
No. It’s different because I — the cause that [defense attorney] sought was on the question of multiple gunshots. “Would multiple gunshots affect you and would that be a determining factor?”
And he said, “Yes, it would be.” The law doesn’t say that a juror that believes multiple gunshots are unwarranted— you can’t serve.
THE COURT:
Do you want to ask Mr. Oliver some questions?
[DEFENSE ATTORNEY]:
Let me just, Judge — that’s not — that was the final—
THE COURT:
Yeah. I think it’s all in totality. I’ll let you try to rehabilitate him. That’s what this is for.
[STATE ATTORNEY]:
I’d like that opportunity, Judge.
THE COURT:
Call back Mr. Oliver. (The juror comes into chambers.)
Thank you, Mr. Oliver, for coming back you can have a seat right here. Mr. Oliver, there were some questions that came up during the Lwhole self-defense, aggressor doctrine, justifiable homicide back and forth, and my question to you basically is: If you are selected as a juror and you take the oath, knowing that the law in Louisiana recognizes the doctrine of self-defense and justifiable homicide, could you fairly and impartially give the defense the opportunity to present that defense to you and listen to it?
JUROR OLIVER:
To present the defense? Yes.
THE COURT:
And do you have a problem with it? I know that there was some back and forth with some of the issues. Do you have a problem with the — and if you do that’s fine. There’s no right or wrong answer on that.
Do you have a problem with the issue or the doctrine of justifiable homicide?
JUROR OLIVER:
With the actual — is there a problem with justifiable homicide?
THE COURT:
Uh-huh. Knowing that the law in certain situations that are clearly set forth say that there is an exception to an act otherwise being a murder—
JUROR OLIVER:
No.
THE COURT:
—if it’s done, again, because that person reasonably believes that he’d be in imminent danger of great bodily harm or death.
JUROR OLIVER:
I agree with that.
THE COURT:
You can follow the law on that?
JUROR OLIVER:
Yes.
THE COURT:
The issue of whether there be one gunshot or multiple gunshots, is that a factor that you could give consideration to?
LJUROR OLIVER:
I could give consideration to. But the question, the way it was put was: Does it give you — the way I took it, the way he was asking was: Does it give you an assumption of difference. At that point when he’s asking me that, yes, just a number of multiple gunshots.
THE COURT:
.So you think that if this were a case where there were multiple gunshots that would immediately — you would immediately say, “I can’t accept self-defense because there was more than one shot?” JUROR OLIVER:
No, just what my assumption would be.
THE COURT:
Does either side have any questions? Mr. Milner?
[STATE ATTORNEY]
I don’t have any.
THE COURT:
Mr. Sauviac?
DEFENSE ATTORNEY:
There was one point during examination out there where we talked about— you said, “Shoot him in the leg,” and I don’t remember all the other ins and outs. Is that something — how are you reconciling that to the issues of what the judge is saying about a general defense of self-defense or justifiable homicide? Is that something that there’s a distinction in your mind between or something that you have a dividing line?
JUROR OLIVER:
Not necessarily a dividing line. It’s just from what your explanation of what justifiable defense was I agree with, but I don’t agree with — you would have to really prove to me that you could not get away from the situation and that the only way for you to escape death was to kill that person.
THE COURT:
And you would impose, Mr. Oliver,— you would impose a reasonable person standard and not necessarily your own if your own may be different than that? JUROR OLIVER:
Right.
I ¿THE COURT:
You would impose just what a reasonable person, accepting a community standard on that would be?
JUROR OLIVER:
Yes.
THE COURT:
Thank you, Mr. Oliver. (The juror leaves chambers.)
I’m going to deny a challenge for cause by the defense as to Mr. Oliver.
[DEFENSE ATTORNEY]:
Note our objection.

Defendant then used a peremptory strike to strike Mr. Oliver and subsequently exhausted his peremptory challenges before the selection of the eighth juror.

The court of appeal found that the trial judge had erred in denying the challenge for cause based on Mr. Oliver’s statement that “you would have to really prove to me that you could not get away from the situation and that the only way for you to escape death was to kill that person.” State v. Taylor, 02-2011 (La.App. 4 Cir. 6/11/03), 850 So.2d 5, 19. The court of appeal reasoned this indicated that Mr. Oliver would require defendant to bear the burden of proving that he acted in self-defense and the trial court’s last two questions simply ascertained that, in holding defendant to this burden, Mr. Oliver would impose a reasonable person standard. Id. Thus, the court of appeal reversed defendant’s conviction and sentence on this basis. Id. We granted the State’s writ application to consider whether the trial court erred in denying defendant’s challenge for cause of this prospective juror. State v. Taylor, 03-1834 (La.1/16/04), 864 So.2d 612.

DISCUSSION

In order for a defendant to prove reversible error warranting reversal of both his conviction and sentence, he need only show the following: (1) erroneous denial of a challenge for cause; and (2) use of all his peremptory challenges. State v. Hart, 96-0697 (La.3/7/97), 691 So.2d 651, 656; State v. Maxie, 93-2158 (La.4/10/95), 653 So.2d 526, 534. Prejudice is presumed when a defendant’s challenge for cause is | ^erroneously denied and the defendant exhausts all his peremptory challenges. See e.g., State v. Ball, 00-2277 (La.1/25/02), 824 So.2d 1089, 1102; State v. Jacobs, 99-1659 (La.6/29/01), 789 So.2d 1280, 1283; State v. Taylor, 99-1131 (La.1/17/01), 781 So.2d 1205; State v. Anthony, 98-0406 (La.4/11/00), 776 So.2d 376, 391; State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683; State v. Robertson, 92-2660 (La.1/4/94), 630 So.2d 1278, 1280-81. An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. Ball, supra at 1102; Cross, supra at 686.

In this case, it is undisputed that defendant exhausted all his peremptory challenges before the selection of the eighth juror; therefore, we must ascertain whether the trial court erred in denying defendant’s challenge for cause regarding prospective juror Oliver. A trial court is vested with broad discretion in ruling on challenges for cause and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. Ball, supra at 1102; Cross, supra; Robertson, supra at 1280. A trial judge’s refusal to excuse a prospective juror for cause is not an abuse of his discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. Cross, supra; Robertson, supra.

La.C.Cr.P. art. 797 governs when a prospective juror may be challenged for cause, providing in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.
|7(4) The juror will not accept the law as given to him by the court;

In a homicide case such as this, in which the defendant asserts that he acted in self-defense, the state has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982). Defendant claims, and the court of appeal agreed, that Mr. Oliver’s statement that “you would have to really prove to me that you could not get away from the situation and that the only way for you to escape death was to kill that person” indicated that he was not impartial and that he would not accept the law on self-defense because he would require defendant to prove he had acted in self-defense.

We find that, despite Mr. Oliver’s statement in response to defense counsel’s questions that “you would really have to prove to me ...,” a review of the voir dire transcript as a whole reveals that he demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. His statement, placed in context, was made in response to defense counsel’s hypothetical questions concerning whether the number of gunshots would negate the defendant’s claim of self-defense. Specifically, defense counsel asked Mr. Oliver if he drew a distinction based on that hypothetical question. Although Mr. Oliver appeared to assume the presence of multiple gunshots might be incompatible with justifiable homicide, he also indicated that there was no “dividing line” in his mind and further reiterated his acceptance of defense counsel’s explanation of justifiable homicide.

Further, in this case, the juror’s answers appear to be brought about “more from a lack of understanding of the law than bias,” and grounds for cause do not exist under these circumstances because a juror is not expected to be familiar with legal terms nor to “understand jurisprudential distinctions in an abstract context.” Ball, supra at 1109 (cites omitted). In this case, the fact that Mr. Oliver said “you would have to really prove to me” that defendant could not get away from the situation does not indicate that he would not apply the law as given or was biased. In light of his other responses that he would follow the law as given and agreed with the doctrine of justifiable homicide, his statement more accurately reflects his lack of understanding |Rof the exact burdens of proof in a homicide case where the defense is self-defense. In addition, the fact that the trial judge then asked the juror if he would apply a reasonable person standard in imposing that burden of proof, instead of informing the juror that it was the state, and not the defendant, that had the ultimate burden of proof in a homicide ease, does not change our analysis. It does not indicate that Juror Oliver would not correctly require the state to bear the burden of proof when ultimately given the proper jury instructions at trial. Further, defense counsel never attempted to have the trial judge correct the juror’s mistaken assumption, although he had ample opportunity to do so, and only noted a general objection to the denial of the challenge for cause, instead of specifically objecting on the grounds that the prospective juror indicated that he would require defendant to bear the burden of proof.

Moreover, “voir dire does not encompass unlimited inquiry by defendant into all possible prejudices of prospective jurors, including their opinions on evidence, or its weight, hypothetical questions, or questions of law that call for any prejudgment of supposed facts in the case.” Ball, supra at 1110. “Louisiana law clearly establishes that a party interviewing a prospective juror may not ask a question or pose a hypothetical which would demand a commitment or pre-judgment from the juror or which would pry into the juror’s opinions about issues to be resolved in the case.” Id. “It is not proper for counsel to interrogate prospective jurors concerning their reaction to evidence which might be received at trial.” State v. Williams, 230 La. 1059, 89 So.2d 898, 905 (1956); see also State v. Smith, 216 La. 1041, 45 So.2d 617 (1950) (“hypothetical questions and questions of law are not permitted in the examination of jurors which call for a pre-judgment of any supposed case on the facts”).

Here, the questions asked by defense counsel directly referred to key facts in this case and called for a prejudgment or commitment by the prospective juror regarding those facts. In fact, the prosecution objected earlier to defense counsel’s line of questioning regarding the number of shots fired; however, the trial court overruled the objection. In addition, Mr. Oliver’s responses to the court regarding his thoughts on the number of gunshots fired in self-defense related directly to questions | adefense counsel had asked him earlier on voir dire. Thus, the appellate court’s reliance on Mr. Oliver’s response to an improper hypothetical question as a ground for reversal was improper. Furthermore, the voir dire transcript as a whole shows that after further questioning by the court, Mr. Oliver understood the concept of self-defense and that a person could be justified in killing another person in certain situations. With this information, Mr. Oliver testified that he could judge the facts of the case according to a reasonable person standard. Thus, contrary to the court of appeal’s finding, the trial court did not abuse its discretion when it denied the defendant’s challenge for cause. DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed and defendant’s conviction and sentence are reinstated.

REVERSED; CONVICTION AND SENTENCE REINSTATED.

      . Thea Williams was also indicted for that murder but the trial court granted Williams' Motion to Sever. The charge against her was eventually amended to accessory after the fact to second-degree murder and she entered a guilty plea.

      . The rule is now different at the federal level. See United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (1/19/00) (exhaustion of peremptory challenges does not trigger automatic presumption of prejudice arising from trial court's erroneous denial of a cause challenge).


text:
    In re Joseph W. THOMAS.
    No. 2004-OB-0813.
    Supreme Court of Louisiana.
    June 2, 2004.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by respondent, Joseph W. Thomas, and the findings and recommendation of the hearing committee,

IT IS ORDERED that Joseph W. Thomas, Louisiana Bar Roll number 8163, be and he hereby is transferred to disability inactive status, pursuant to Supreme Court Rule XIX, § 22(C).

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    In re Leon E. ROY, III.
    No. 2004-B-1066.
    Supreme Court of Louisiana.
    June 4, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent converted his client’s settlement funds. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in the form of disbarment. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Leon E. Roy, III, Louisiana Bar Roll number 18066, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Jean Batiste MORNEAU.
    No. 2004-B-1091.
    Supreme Court of Louisiana.
    June 4, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent commingled client funds with his own, failed to communicate with his client, and failed to promptly refund an unearned fee. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Jean Batiste Morneau, Louisiana Bar Roll number 9721, be publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall enroll in and attend one full day of Ethics School offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee.

IT IS FURTHER ORDERED that respondent will voluntarily participate in the Louisiana State Bar Association’s Fee Dispute Resolution Program regarding fees charged to Patricia McCann.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Elzey Jeffrey PERILLOUX.
    No. 2004-B-1141.
    Supreme Court of Louisiana.
    June 4, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent notarized a document outside the presence of the signatory. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Elzey Jeffrey Perilloux, Louisiana Bar Roll number 22586, be publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


author: I .PER CURIAM.

text:
    In re George S. Stephen BRADLEY.
    No. 2004-B-0169.
    Supreme Court of Louisiana.
    June 4, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

I .PER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, George S. Stephen Bradley, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

This disciplinary matter arises from respondent’s representation of Jason Blanchard. By way of background, in 1996, Mr. Blanchard pleaded guilty to armed robbery and possession of a firearm by a convicted felon. On September 25, 2000, Mr. Blanchard filed a pro se application for post-conviction relief. The application was denied by the trial court in November 2000. Mr. Blanchard then applied for supervisory writs from the trial court’s ruling. On May 31, 2001, the court of appeal denied Mr. Blanchard’s writ application.

Shortly after the court of appeal’s ruling, Mr. Blanchard’s stepfather, James Walsh, retained respondent to file a writ application in this court on Mr. Blanchard’s behalf. Mr. Walsh gave respondent $1,800 towards a total fee of $4,000 to handle the matter, and he explained to respondent that the “appeal” was due in approximately twenty days.

Respondent accepted the representation, although he admitted he had little or no experience or background in the area of criminal law. After being retained, [2respondent failed to file any-pleadings on behalf of Mr. Blanchard. Mr. Walsh filed a disciplinary complaint against respondent in November 2001.

Respondent failed to answer Mr. Walsh’s complaint, necessitating the ODC’s issuance of a subpoena compelling him to appear on March 26, 2002 and answer the complaint under oath. On March 29, 2002, respondent met with Mr. Walsh and convinced him that within two months he would see “substantial progress” in Mr. Blanchard’s case. Nonetheless, respondent failed to take any meaningful action on Mr. Blanchard’s behalf. He also failed to promptly release the file to his client upon request, and delayed in refunding the unearned portion of the legal fee that Mr. Walsh paid.

DISCIPLINARY PROCEEDINGS

After investigation, the ODC filed one count of formal charges against respondent, alleging that his conduct in the Blanchard matter violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(6) (failure to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

In his answer to the formal charges, respondent admitted that he did not regularly communicate with Mr. Walsh, and that he did not achieve “concrete progress” in the case as he had promised after his sworn statement in March 2002. Furthermore, respondent admitted that he did not account to Mr. Walsh for the partial |sfee he paid, but he represented that he had “just spoken to him by phone and have agreed to return the fee; in this conversation, he also acknowledged that he has obtained his file.”

Recommendation of the Hearing Committee

The matter proceeded to a formal hearing before the committee. The ODC presented the testimony of Mr. Walsh, as well as documentary evidence. Respondent testified on his own behalf.

Considering the evidence presented at the hearing, the hearing committee found clear and convincing evidence that respondent violated Rules 1.1(a) (competence), 1.3 (diligence), 1.4 (communication), 1.16(d) (termination of the representation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (misrepresentation). The committee made no finding concerning the Rule 8.4(d) violation alleged by the ODC in the formal charges. Finally, the committee found the ODC did not prove a violation of Rule 1.5(f)(6) (failure to refund an unearned fee), reasoning that after Mr. Walsh made demand for return of the fee, he then gave respondent a “second chance” and allowed him to retain the fee. Respondent returned the fee at the hearing.

Relying upon the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction for respondent’s misconduct is a suspension from the practice of law. As aggravating factors, the committee recognized respondent’s prior disciplinary offenses, multiple offenses, and substantial experience in the practice of law (admitted 1977). The committee made no finding concerning mitigating factors. Under these circumstances, the committee Rrecommended that respondent be suspended from the practice of law for a period of two years.

Recommendation of the Disciplinary Board

After reviewing this matter, the disciplinary board found that the hearing committee’s factual findings are supported by the record. With regard to its legal findings, the board determined the committee correctly found respondent’s actions violated Rules 1.1(a), 1.3, 1.4, 1.16(d), 8.4(a), and 8.4(c). However, the board also found that respondent violated Rule 1.5(f)(6) when he failed to promptly refund the legal fee Mr. Walsh paid, and that he violated Rule 8.4(d) when he misrepresented to Mr. Walsh the legal services he would perform for Mr. Blanchard, causing Mr. Blanchard to miss the deadline to file his writ application.

The board determined that respondent violated duties owed to his client, and that his conduct was partly knowing and partly intentional. Respondent knew that he had not practiced criminal law for twenty years and that he had not kept abreast of either the substantive or procedural changes in criminal law. Respondent’s conduct was intentional when he purposely did not return Mr. Walsh’s telephone calls, and when he failed a second time to work on the file because he had lost interest in the case. The board found that Mr. Blanchard was harmed by missing the writ application deadline and by respondent’s failure to timely return the file so that he could seek other counsel, and that Mr. Walsh was harmed by the delay in having his $1,800 fee returned.

Standard 4.42 of the ABA’s Standards for Imposing Lawyer Sanctions suggests that suspension is appropriate when a lawyer knowingly fails to perform services for a client or engages in a pattern of neglect and causes injury or potential | sinjury to a client. Respondent knowingly failed to do any work on Mr. Blanchard’s writ application and then failed again to do any work after being given a second chance by Mr. Walsh. Standard 4.52 provides for suspension when a lawyer engages in an area of practice in which he knows he is not competent, and causes injury or potential injury to a client. Respondent had not handled a criminal matter in twenty years and he did not stay current in criminal law nor did he become current in the law.

The board recognized the following aggravating factors: prior disciplinary offenses, pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. The board found that no mitigating factors are present.

Turning to the issue of the discipline that should be imposed for respondent’s misconduct, the board noted that the baseline sanction for a single instance of neglect, failure to communicate, and failure to properly terminate a client’s representation is generally a suspension of one year and one day. However, longer suspensions have been imposed in cases in which significant aggravating circumstances are found to be present. The board concluded that under the facts of this case, the appropriate sanction is an eighteen-month suspension from the practice of law, with five months deferred, subject to a one-year period of supervised probation and successful completion of Ethics School. The board also recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to | ^commence running thirty days from the date of finality of the court’s judgment until paid.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Based on our review of the record, we conclude the ODC proved by clear and convincing evidence that respondent failed to represent Mr. Blanchard in a competent and diligent manner. The record further supports the finding that respondent failed to adequately communicate with Mr. Walsh or Mr. Blanchard and failed to refund in a timely manner the unearned legal fee paid by Mr. Walsh.

Having found professional misconduct, we now turn to a discussion of the appropriate sanction for this misconduct. In fashioning a sanction, we are mindful that the purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain appropriate standards of professional conduct to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from [ 7engaging in violations of the standards of the profession. Louisiana State Bar Ass’n v. Guidry, 571 So.2d 161 (La.1990). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s misconduct caused harm to Mr. Blanchard by causing him to miss the deadline to file his application for review. The baseline sanction for such misconduct is a suspension from the practice of law.

Several aggravating factors are present, including respondent’s prior disciplinary record, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. We find no mitigating factors, although we recognize respondent belatedly made full restitution to Mr. Walsh.

Considering all the factors, we conclude an eighteen-month suspension from the practice of law, with five months deferred, is an appropriate sanction.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record filed herein, it is ordered that George S. Stephen Bradley, Louisiana Bar Roll number 3375, be suspended from the practice of law for a period of eighteen months, with five months deferred. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date óf finality of this court’s judgment until paid.

      . Respondent was admonished by the disciplinary board in 1998 for neglecting a legal matter, failing to communicate with a client, and failing to cooperate with the ODC in its investigation (see 98-ADB-010).

      . The board cited In re: Trichel, 00-1304 (La.8/31/00), 767 So.2d 694 (eighteen-month suspension imposed upon an attorney who neglected a legal matter, failed to communicate with his clients, and failed to properly terminate his representation of the clients; aggravating factor of prior discipline was noted), and In re: Schaefer, 98-2740 (La. 1/8/99), 725 So.2d 1289 (eighteen-month suspension imposed upon an attorney who failed to take any action on his client's behalf, but misled her into believing her case was proceeding; the claim ultimately prescribed. The aggravating factors included vulnerability of the victim, substantial experience in the practice of law, and indifference to making restitution.).


author: | , THIBODEAUX, Chief Judge.

text:
    Gaynell FINNIE, Indiv., et al. v. Jerry LEBLANC, et al.
    No. 03-1013.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2004.
    On Rehearing July 7, 2004.

      Edward Joseph Walters, Jr., Darrel James Papillion, Moore, Walters, Thompson, Hoover, Thomas, Papillion & Cullens, Baton Rouge, LA, Kathleen Kay, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Gaynell Finnie.
    James Eugene Williams, Woodley, Williams, Boudreau, Norman, Brown & Doyle, L.L.C., Lake Charles, LA, for Defendant/Appellant, Lafayette Insurance Company.
    Charles Munson Lanier, Jr., John Kear-ney Nieset, Christovieh & Kearney, LLP, New Orleans, LA, for Defendant/Appellee, American Home Assurance, Inc.
    Jerry LeBlane, Lake Charles, LA, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   | , THIBODEAUX, Chief Judge.

Plaintiff, Gaynell Finnie, brought suit against defendant, Jerry E. LeBlane, alleging malpractice and sexual misconduct arising from their counseling relationship. Mr. LeBlane, in turn, sued Ms. Finnie, alleging false allegations of sexual misconduct. As a result of Mr. LeBlanc’s suit, Ms. Finnie amended her suit to allege claims of defamation and malicious prosecution. Before trial, Ms. Finnie settled her claim against Mr. LeBlane, dismissed him with prejudice, and reserved the right to proceed against Mr. LeBlane to the extent he was insured by Lafayette Insurance Company, his comprehensive general liability insurer. The jury returned a verdict against Mr. LeBlane and awarded Ms. Finnie general and special damages.

Lafayette Insurance Company appeals the decision of the jury. Ms. Finnie answers the appeal and requests an increase in general damages. We affirm the judgment of the trial court rendered pursuant to the jury’s verdict and increase the general damages award from $6,125.00 to $150,000.00.

I.

ISSUES

1) Was the judgment against Jerry E. LeBlane, to the extent he was insured by Lafayette Insurance Company, erroneous because Mr. LeBlane was dismissed from the suit?

2) Was the jury award of special damages erroneous?

3) Should the trial court have allowed an interrogatory to the jury on whether LeBlane was guilty of intentional conduct?

J5.II.

FACTS

Gaynell Finnie was a patient of Jerry LeBlane, a social worker. Ms. Finnie sought help from Mr. LeBlane to deal with many issues, including her son’s suicide.

Ms. Finnie began seeing Mr. LeBlane in January of 2000. By February of 2000, they had entered into a sexual relationship. Ms. Finnie informed another counselor, Janice Bray Manuel, about the sexual relationship. Ms. Manuel confronted Mr. LeBlane about Ms. Finnie’s allegations, and Mr. LeBlane denied the allegations. Ms. Manuel reported this information to the State of Louisiana Board of Social Worker Examiners.

Ms. Finnie sued Mr. LeBlanc on malpractice and sexual misconduct charges. Mr. LeBlanc continued to deny the allegations. In addition, Mr. LeBlanc and his wife, Kathy P. LeBlanc, filed suit against Ms. Finnie, alleging that she made false allegations of sexual misconduct, caused a false complaint to be filed against him, and falsely accused him of misdiagnosis of her condition. He also claimed that she converted his records to her own possession and altered these documents.

Ms. Finnie amended her petition to allege defamation and malicious prosecution and brought Lafayette Insurance Company (LIC), Mr. LeBlanc’s comprehensive general liability insurer, into the suit. Mr. LeBlanc admitted that he lied regarding their sexual relationship after he was confronted with taped conversations wherein he admitted the sexual relationship. Mr. LeBlanc dismissed his lawsuit and plead guilty to false swearing.

LIC filed a motion for summary judgment and alleged an intentional act exclusion and an exclusion based on the rendition of professional services. The trial | ocourt granted summary judgment to LIC based on the professional services exclusion, but the appeal time had not yet run by the time of trial. LIC intervened as a party-defendant because although it had been dismissed from the suit by summary judgment, it still wanted to protect its interests.

Prior to trial, Ms. Finnie entered into a settlement with Mr. LeBlanc and all of Mr. LeBlanc’s other insurers, except LIC. The Joint Motion for Partial Dismissal dismissed Mr. LeBlanc with prejudice but reserved the right to proceed against him “to the extent that he was insured by Lafayette.”

At trial, the only issues before the jury were Jerry LeBlanc’s liability for defamation and malicious prosecution and the amount of Ms. Finnie’s damages. The jury found that Mr. LeBlanc was liable to Ms. Finnie for defamation and malicious prosecution and awarded her special damages of $343,875.00 and general damages of $6,125.00. LIC appealed the jury verdict, and Ms. Finnie answered the appeal, seeking an increase in the general damages award.

Mr. LeBlanc was discharged in bankruptcy, but the bankruptcy court granted him the right to proceed to determine the liability of LIC.

III.

LAW AND DISCUSSION

Standard of Review

“Appellate review of a question of law is simply a decision as to whether the [trial] court’s decision is legally correct or incorrect.” Jim Walter Homes, Inc. v. Jessen, 98-1685, p. 5 (La.App. 3 Cir. 3/31/99), 732 So.2d 699, 702. “If the trial court’s decision was based on its erroneous application of law, rather than on a valid exercise of discretion, its decision is not entitled to deference by the reviewing court.” Id. (citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983)). When an ^appellate court finds that a reversible error of law was made in the trial court, it must review the facts de novo and render a judgment on the merits. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

Dismissal of Jerry LeBlanc

LIC argues that because Mr. Le-Blanc was dismissed from the suit, his obligation to Ms. Finnie was extinguished. LIC further argues that because Mr. Le-Blanc was no longer legally liable for a judgment rendered against him, neither could it be liable as Mr. LeBlanc’s insurance carrier. LIC concludes that it should have been dismissed from the suit, or the trial court should have allowed it to present evidence to the jury regarding the terms of settlement to allow the jury to consider the extent that Mr. LeBlanc was insured by LIC.

On the other hand, Ms. Finnie argues that Mr. LeBlanc’s release and reservation of rights was pursuant to Gasquet v. Commercial Union, 391 So.2d 466 (La.App. 4 Cir.1980), unit denied, 396 So.2d 921 (La.1981), which held that a defendant may be released, and his rights may be reserved against an insurance company. The facts of Gasquet are distinguishable from the instant case and, thus, we will not rely on it. Gasquet involved an excess insurer, and the claimant in Gasquet could not go against the primary carrier, as in this case.

Rollins v. Richardson, 02-0556 (La.12/4/02), 833 So.2d 921 involved facts similar to this case. Rollins involved a plaintiff, Rollins, who entered into a settlement agreement with the defendants, the Richardsons. The parties executed an “Assignment of Rights and Subrogation Agreement” wherein, in consideration for being dismissed from the lawsuit, the defendants assigned to Rollins any claims or rights against Allstate Insurance Company, the Richardsons’ insurance carrier. In addition, Rollins filed an amended petition naming Allstate as a defendant in the main 1 ¡^demand. Thereafter, Rollins and the Richardsons filed a partial motion to dismiss. The motion dismissed the Richard-sons but expressly reserved rights against Allstate, as the insurer of the Richardsons.

On a motion for summary judgment, Allstate argued that there was no longer any coverage under the Richardsons’ policy because the policy only covered damages that the Richardsons were legally obligated to pay. Allstate argued that its indemnification obligation was extinguished because the claims against the Richardsons had been dismissed with prejudice.

In Rollins, the appellate court affirmed the judgment of the district court granting summary judgment in favor of Allstate on the issue of coverage. The appellate court reasoned that “the compromise between the plaintiff and the Richardsons effected a complete extinguishment of the Richard-sons’ delictual obligations, thereby relieving Allstate of any liability under its policy.” Id. at 924. However, the supreme court stated:

As the court of appeal correctly recognized, the intent of the parties to the compromise is central to the resolution of this case. Rollins v. Richardson, 35,-171 (La.App. 2 Cir. 12/7/01), 803 So.2d 1028, 1033 (“[W]e find that the intent of the parties to a settlement or compromise between a plaintiff and an insured tortfeasor must be examined to determine whether the tortfeasor’s delictual obligation to which the insurance coverage applies has been released.”). See also, Futch v. Fidelity & Cas. Co. of New York, 246 La. 688, 166 So.2d 274, 277 (1964).

Id. at 924-25. The supreme court declined to grant summary judgment, stating that the record revealed genuine issues of material fact relative to the intent of the parties.

In this case, Ms. Finnie reserved her claim against Mr. LeBlanc to the extent that he was insured by LIC. This was a partial dismissal, not a carte blanche release. The language in the partial dismissal, “to the extent he was insured by Lafayette” gave Ms. Finnie the right to proceed against LIC. LIC should not have | fibeen dismissed from the suit for the sole reason that Mr. LeBlanc was dismissed from the suit. The intent was to grant a partial release of Mr. LeBlanc and to reserve rights to the extent that he was covered by LIC. We cannot say that trial court was legally incorrect in allowing the suit against LIC.

Special Damages

LIC argues that the jury award of special damages was erroneous. It argues that the jury confused the damages associated with defamation and malicious prosecution with those arising from other causes of action which were settled before trial. In addition, LIC argues that the testimony of its experts, Dr. Vigen and Dr. Williams, indicated that the harm caused by defamation and malicious prosecution was minimal.

The jury awarded Ms. Finnie $843,875.00 in special damages. We will not disturb the jury’s award of damages unless we find that the award constitutes an abuse of the jury’s discretion. See Eddy v. Litton, 586 So.2d 670 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1203 (La.1992).

Jefferey Peterson, a licensed professional rehabilitation counselor, testified that Ms. Finnie’s future costs would include a stay at a facility recommended by her doctors at approximately $66,156.00 for three months; neuropsychological testing at approximately $1,900.00 for 2 tests; one-on-one counseling at approximately $6,000.00; and medications costing approximately $5,200.00 per year. He also testified that Ms. Finnie was permanently disabled from teaching and would require vocational rehabilitation services ranging from $12,000.00 to $25,000.00 per year, at an average of $18,750.00 for three years. Additionally, Charles Bettinger, an economics expert, testified that her loss of income past and future would be 17approximately $880,665.00, and her costs for future medical and vocational rehabilitation would be approximately $393,487.00.

We find that the evidence was sufficient to support an award of past and future lost earnings and medical expenses. Thus, the jury did not abuse its discretion in awarding special damages.

General Damages

Ms. Finnie argues that the jury’s general damages award should be increased. The jury awarded Ms. Finnie general damages of $6,125.00, while awarding her special damages of $343,875.00.

The standard of review for an award for damages is set forth in Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74:

[BJefore a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La.1977) (internal citations omitted).

We review the jury’s award of $6,125.00 in general damages by asking whether the jury’s determination that Ms. Finnie was entitled to a substantial award for medical expenses and loss of earnings, but to a low award for general damages, is so inconsistent that it renders the latter finding an abuse of discretion. Based on the facts in the record, we find the jury did abuse its discretion in awarding only $6,125.00 in general damages.

The jury’s substantial special damage award is inconsistent with the finding that Ms. Finnie only suffered $6,125.00 in com-pensable pain and suffering ^associated ■with her claim for defamation and malicious prosecution. We, therefore, increase this amount to the lowest reasonable point, which we believe is $150,000.00.

Based on the testimony and the evidence, we find that Ms. Finnie experienced pain and suffering. Ms. Manuel, a treating psychotherapist, testified that Ms. Fin-nie was an exceptional teacher and very reputable in her community. She had an intact family and was a good mother. However, since the defamation and malicious prosecution incidents, she was unable to work and take care of her children. Ms. Manuel also testified that Ms. Finnie’s spirituality had been confused and mauled. She became seriously depressed and became very suicidal.

Dr. Yadalam, Ms. Finnie’s treating psychiatrist, testified that she has prominent symptoms several times a week. On any given week, these symptoms are severe enough that she is unable to function even in the simplest of jobs. Dr. Yadalam recommended that she receive treatment approximately six times per month for about two more years and then once every month for at least another year or two. Dr. Yadalam testified that Mr. LeBlanc’s actions caused Ms. Finnie’s treatment to increase in intensity and duration.

The substantial award of $295,000.00 for loss of earning suggests that the jury believed she was disabled. If one is disabled and is unable to pursue her chosen profession or to work in any profession, that degree of physical and mental distress past, present and future, would exceed $6,125.00. Therefore, we find that an award of $150,000.00 is the lowest point which is reasonably within the discretion afforded the trier of fact.

| ¿Denial of Interrogatory

Finally, LIC argues that the trial court was in error in failing to present an interrogatory to the jury as to whether or not the conduct of Mr. LeBlanc was intentional. The claims before the jury were malicious prosecution and defamation.

Winn v. City of Alexandria, 96-492, p. 5 (La.App. 3 Cir. 11/20/96), 685 So.2d 281, 284, sets forth the elements of a malicious prosecution claim:

A civil action for malicious prosecution requires the concurrence of the following elements: (1) the commencement or continuance of a criminal proceeding;
(2) its legal causation by the present defendant against plaintiff, who was defendant in the original ... proceeding;
(3) its bona fide termination in favor of the present ... plaintiff; (4) the absence of probable cause for such proceeding;
(5) the presence of malice therein; and
(6) damages.

The only element that would possibly necessitate inquiry into whether Mr. LeBlanc’s conduct was intentional is the element of malice. “Malice can be inferred when the evidence shows that ‘the claimant acted with absence of caution and inquiry that a person should employ before filing a suit.’ ” Wiley v. Wiley, 01-0726, p. 5 (La.App. 3 Cir. 11/7/01), 800 So.2d 1106, 1110, writ denied, 01-3232 (La.2/8/02), 809 So.2d 129 (quoting Jones v. Soileau, 448 So.2d 1268, 1272 (La.1984)). “Moreover, malice exists when there is ‘knowledge that it is false or a reckless disregard for the truth.’ ” Id. (quoting Aucoin v. Aetna Cas. & Sur. Co., 520 So.2d 795, 798 (La.App. 3 Cir.1987)). Thus, an inquiry into whether Mr. LeBlanc’s actions were intentional is not needed to satisfy the element of malice and is not needed to prove a claim of malicious prosecution.

|1fl“In order to prevail in a defamation action, a plaintiff must necessarily prove four elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Fitzgerald v. Tucker, 98-2313, p. 10 (La.6/29/99), 737 So.2d 706, 715. “Thus a plaintiff, in order to prevail in a defamation action, must prove ‘that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.’ ” Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559. “Actual malice exists if the statement was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” City of Natchitoches v. Employers Reinsurance Corp., 02-0147, p. 5 (La.App. 3 Cir. 6/5/02), 819 So.2d 413, 418 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964)). “Reckless disregard occurs when the defendant publishes the statement despite having a high awareness of the statement’s probable falsity.” City of Natchitoches, 819 So.2d at 418. Thus, an inquiry of whether Mr. LeBlanc’s actions were intentional was not needed to prove defamation.

Neither a claim of malicious prosecution nor a claim of defamation requires the plaintiff to prove intent. Therefore, the trial court was legally correct in refusing to allow a jury interrogatory on whether Mr. LeBlanc’s conduct was intentional.

IV.

MOTION TO SUPPLEMENT APPEAL RECORD

LIC implores us to supplement this appeal record to include “all pleadings, orders, and minute entries filed in the Chapter 7 bankruptcy proceedings” entitled “In Re: Jerry Edward LeBlanc and Kathleen Prudhomme LeBlanc” on the docket of the United States Bankruptcy Court for the Western District of Louisiana. _J_yWe decline to do so. These items are not in the record of the trial court proceedings. Appellate courts are not authorized to accept evidence. Further, the proposed submissions are insusceptible of judicial notice under La.Code Evid. arts. 201-202.

V.

CONCLUSION

For the above reasons, the judgment appealed from is affirmed. The judgment is amended to increase the general damage award from $6,125.00 to $150,000.00. Costs of this appeal are assessed to Lafayette Insurance Company.

AMENDED AND, AS AMENDED, AFFIRMED. MOTION TO SUPPLEMENT THE RECORD DENIED.

DON REHEARING

We grant the rehearing filed by Jerry E. LeBlanc and Lafayette Insurance Company for the purpose of declaring that the issues raised in this appeal are moot. Finnie v. LeBlanc, 03-457 (La.App. 3 Cir. 10/1/03), 856 So.2d 208 is now final. The Louisiana Supreme Court has denied review. See Finnie v. LeBlanc, 03-3333 (La.App. 3 Cir. 3/19/04), 869 So.2d 849.

We now dismiss this appeal.

REHEARING GRANTED.

APPEAL DISMISSED.

AMY, J., would deny the rehearing.

      . This panel is aware that in Finnie v. LeBlanc, 03-0457 (La.App. 3 Cir. 10/1/03), 856 So.2d 208, this court held that coverage did not exist under the LIC policy. However, a writ is currently pending before the Louisiana Supreme Court, Finnie v. LeBlane, 03-3333. The writ has not been acted upon. Therefore, this matter is not final.

      . The bankruptcy proceedings did not have an impact upon these proceedings because Louisiana's Direct Action Statute, La.R.S. 22:655, permits direct action against an insurer when an insured has been adjudicated bankrupt.