author: TRAYLOR, Justice. CALOGERO, Chief Justice, CALOGERO, Chief Justice,

text:
    STATE of Louisiana v. Monolo Anton BAKER.
    No. 2006-K-2175.
    Supreme Court of Louisiana.
    Oct. 16, 2007.
    Dissenting Opinion on Denial of Rehearing Jan. 7, 2008.
    Roach & Roach, Annette Fuller Roach, Lake Charles, for applicant.
    Charles C. Foti, Jr., Attorney General, Paul Carmouche, District Attorney, Lea R. Hall, Jr., Tommy Jan Johnson, Jonathan Dhu Thompson, Catherine Marion Estopi-nal, Assistant District Attorneys, for respondent.
   TRAYLOR, Justice.

I,The issue presented is whether a sentence imposed for possession of a firearm by a felon, a violation of La. R.S. 14:95.1, is subject to further enhancement under the habitual offender law, La. R.S. 15:529.1 Because we find nothing in the language of either statute which would prohibit the enhancement of a sentence imposed for a violation of La. R.S. 14:95.1 under the circumstances of this case, we affirm the appellate court decision.

FACTS and PROCEDURAL HISTORY

The defendant, Monolo Anton Baker (“Baker” or “defendant”), has the following relevant criminal history:

(1) December 16, 1996 felony conviction for aggravated battery, a violation of La. R.S. 14:34; and

(2) September 13, 1999 felony conviction for illegal possession of stolen things, a violation of La. R.S. 14:69.

Thereafter, Baker was arrested and charged with a violation of La. R.S. 14:95.1, possession of a firearm by a convicted felon. La. R.S. 14:95.1 makes it a felony offense for any person who has been previously convicted of certain enumerated felonies to possess a firearm or carry a concealed weapon. The prior |2felony alleged in the bill of information charging the firearm offense was the 1996 conviction for aggravated battery, a violation of La. R.S. 14:34.

On January 27, 2005, Baker, entered a plea of guilty as charged to being a felon in possession of a firearm. On March 16, 2005, the district judge sentenced Baker to eleven and a half (11½) years imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

Thereafter, the state filed an habitual offender bill of information, seeking to enhance Baker’s firearm sentence under the provisions of La. R.S. 15:529.1. The state alleged in the multiple bill that Baker was a second felony offender based on the current 2005 conviction for possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1, and the 1999 felony conviction for illegal possession of stolen things, a violation of La. R.S. 14:69.

Thus, the state relied upon Baker’s prior conviction for a violation of La. R.S. 14:34, aggravated battery, as an element in charging the defendant with having violated La. R.S. 14:95.1 and a different prior felony conviction for a violation of La. R.S. 14:69, illegal possession of stolen things, in seeking to have his sentence enhanced. Baker objected to the habitual offender bill, arguing that his sentence for a violation of La. R.S. 14:95.1 could not be enhanced beyond the penalty provisions provided in that statute.

After a hearing, the district judge adjudicated Baker a second felony offender, vacated his prior sentence of eleven and a half years (11½) imprisonment at hard labor, and sentenced Baker to fifteen (15) years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The district judge denied Baker’s motion to reconsider the sentence.

On appeal, the Second Circuit affirmed Baker’s adjudication and sentence as |san habitual offender. The appellate court rejected Baker’s sole argument that his adjudication and sentencing as an habitual offender following his conviction for felon in possession of a firearm constituted “double enhancement” prohibited by this court’s decisions in State v. Sanders, 337 So.2d 1131 (La.1976) and State v. Firmin, 354 So.2d 1355 (La.1978). We granted the defendant’s writ application to review the correctness of that decision.

LAW AND DISCUSSION

Prior Precedent from, this Court

Baker urges that his habitual offender adjudication and sentence must be vacated under the holdings of Sanders and Fir-min. In Sanders, this court was presented with the res nova question “whether the state may multiple-bill a person, who was convicted under R.S. 14:95.1 of being a convicted felon who carries a concealed weapon, by using in the multiple-bill the same felony convictions alleged as elements of the offense.” Id., 337 So.2d at 1132.

The defendant in that criminal matter, Clarence Sanders, had three prior felony convictions for the following crimes: an armed robbery in 1955, another armed robbery in 1961 and attempted simple burglary in 1970. He was subsequently charged with violating La. R.S. 14:95.1, which makes it a crime for a convicted felon to carry a concealed weapon. The underlying felonies used to support the firearm violation were the 1961 armed robbery and the 1970 attempted simple burglary. After conviction and sentencing, the state relied upon both armed robbery and the attempted simple burglary convictions to have Sanders adjudicated as an habitual offender so that his punishment for the firearms conviction could be increased. Sanders filed a motion to quash the multiple offender bill, which was granted by the | ¿trial court.

On review, this court discussed two concepts. First, the court found that the state’s attempt to further enlarge Sanders’ firearms penalty was an improper attempt to use the defendant’s prior convictions twice: “first, to establish his status as a convicted felon so as to convict him of the crime, and, second to increase the penalty through a multiple bill.” Id., 337 So.2d at 1134. In finding such a “double enhancement” improper, the court noted that “[t]he act of possessing or concealing [a weapon under La. R.S. 14:95.1] becomes a felony only because the person has the status of convicted felon” and that the legislature itself had imposed an increased penalty on a felon who was found to be the possessor or concealor of a weapon. Id. Thus, the court answered the res nova question presented by the facts of that case in the negative, ie. the state may not use the habitual offender law to enhance a sentence for a conviction under La. R.S. 14:95.1 by using in the multiple bill the same felony convictions alleged as elements of the firearm offense.

The second concept which Sanders discussed was a determination that no further enhancement, other than the penalties already described in La. R.S.14:95.1, could be made to a sentence imposed under that statute. In reaching this conclusion, the court presumed that the legislature must not have intended for the state to use the habitual offender law to further enhance a sentence for a firearms conviction under La. R.S. 14:95.1. “Since the legislature in passing R.S. 14:95.1 has in that very statute provided enhanced penalties for the act of concealing a weapon when the concealor is a felon, we therefore presume that it must not have intended the multiple enhancement incident to the state’s using R.S. 15:529.1 to further enhance the penalty.” Sanders, 337 So.2d at 1134. To support the court’s presumption, the court looked to the decisions of other state courts regarding enhancement of crimes which |stook into account the status of the offender and the fact that the legislature did not specifically indicate in the language of the firearms statute that a sentence imposed under La. R.S. 14:95.1 could be enhanced under the habitual offender law. Sanders, 337 So.2d at 1134-35.

The court’s ultimate holding in Sanders was the following statement:

Consequently, we find that the penalty provisions enacted in R.S. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant’s previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure to remain available as a vehicle for further enlargement of the penalty.
Id., 337 So.2d at 1135.

Despite the second, more far-reaching holding of Sanders, the decision was bound to its facts, that is, the state had attempted to use the habitual offender law to enhance a sentence for a conviction under La. R.S. 14:95.1 by using in the multiple bill the same felony convictions alleged as an element of the firearms offense.

Two years later, the court subsequently removed any doubt as to the reach of the Sanders decision in Firmin. In Firmin, the defendant was charged with, and found guilty of, a violation of La. R.S. 14:95.1, in that he carried a concealed weapon having been previously convicted of possession of narcotics. Prior to sentencing, the state filed a bill of information pursuant to La. R.S. 15:529.1 charging that Firmin was a second offender, relying on the present firearm conviction and a previous felony conviction for violation of the Federal Gun Control Act of 1968. Firmin admitted the allegations of the multiple bill and was sentenced as an habitual offender. Relying on Sanders, the court in Firmin vacated the sentence and held: “[although in the instant case the state relied upon one prior conviction in charging the defendant with having violated La. R.S. 14:95.1 and a different prior conviction in seeking to have his sentence enhanced under the provisions of La. R.S. 15:529.1, Rthe rule of State v. Sanders, supra, is still applicable and the defendant should not have been sentenced as a multiple offender.” Firmin, 354 So.2d at 1355. As applied in Firmin, the rule of Sanders prevents double use of a defendant’s recidivist offender status, not simply the double use of any particular prior felony conviction.

Although Firmin has not been cited as authority in any subsequent opinions, Sanders has continued to be cited as authority, both in situations involving La. R.S. 14:95.1 and for other crimes for the propositions: (1) that the same prior conviction cannot be used as an element in the underlying felony and as a prior conviction in a multiple offender bill seeking to enhance that felony, and (2) that when a defendant’s recidivist status is an element of a felony offense, the punishment for that offense cannot be further enhanced.

Court of Appeal Analysis

On appeal, Baker argued that his adjudication as a multiple offender was improper under Sanders and Firmin as an impermissible double enhancement of his firearms conviction. The state countered that no double enhancement occurred because Baker’s 1996 aggravated battery conviction supported Baker’s firearm violation under La. R.S. 14:95.1, while his prior 1999 conviction for possession of stolen things was used to support the habitual offender charge under La. R.S. 15:529.1.

Although the Second Circuit acknowledged the reasoning of this court’s opinions in Sanders and Firmin, the appellate court continued its analysis by citing 17to, and ultimately relying upon, appellate court cases which address a totally different issue than the one presented here. Instead of trying to determine whether a sentence under La. R.S. 14:95.1 could be enhanced by habitual offender proceedings, the court of appeal focused on the use of a firearms conviction to enhance a subsequent conviction.

The appellate court cited to the Fourth Circuit’s opinion in State v. Hymes, 513 So.2d 371 (La.App. 4 Cir.1987), wherein that appellate court held that a felon in possession of a firearm conviction may be used to enhance the penalty for a subsequent conviction only if the underlying felony used as an element in the firearms conviction is not also used in the same multiple bill. Id., 513 So.2d at 373. In a variant on that concept, the Second Circuit also noted cases where it and other courts of appeal have held that a prior conviction used to enhance the commission of a subsequent crime into a second offense (for example, second offense narcotics possession) may not thereafter be used in the habitual offender bill following the defendant’s conviction for a subsequent felony when both the original conviction and second offense conviction appear in the same multiple bill. See generally State v. Smith, 2005-375 p. 10 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, 842; State v. White, 39,634 p. 3 (La.App. 2 Cir. 6/16/05), 907 So.2d 180, 182, writ denied, 2005-2097 (La.3/10/06), 925 So.2d 510; State v. Iverson, 37,369 p. 5 (La.App. 2 Cir. 9/24/03), 855 So.2d 835, 838-839, writ denied, 2003-2950 (La.5/14/04), 872 So.2d 510; and State v. Harrison, 32,643 p. 10 (La.App. 2 Cir. 10/27/99), 743 So.2d 883, 889-890, writ denied, 1999-3352 (La.6/30/00), 765 So.2d 327.

From these appellate court opinions, the Second Circuit drew the conclusion that “no impermissible double enhancement occurred in Baker’s case” because the 18conviction used to prove an essential element of the firearm possession offense was not the prior conviction then used to enhance the offender status and sentence of the firearm conviction under the habitual offender proceedings. Baker, 40,997 p. 6, 935 So.2d at 369.

Analysis

Although the court of appeal ignored clear precedent from this court, a practice which we cannot condone, its doing so resulted in our granting a writ of review. Consequently, the court has been provided with an opportunity to re-evaluate our previous opinions on this issue.

Our interpretation of a Louisiana criminal statute is governed by the following rule:

... in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.

La. R.S. 14:3; see State v. Skipper, 2004-2137 p. 3 (La.6/29/05), 906 So.2d 399, 403.

As originally enacted, and as the form of the statute at issue in Sanders, La. R.S. 14:95.1 provided:

§ 95.1 Possession of firearm or carrying concealed weapon by a person convicted of certain felonies
A. it is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who 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 one of the above enumerated crimes, to possess a firearm or carry a concealed weapon.
B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more | flthan ten years. If such conviction is for the crime of carrying a concealed weapon, such sentence shall be without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.
C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
(2) Upon completion of sentence, probation, parole, or suspension of sentence the convicted felon shall have the right to apply to the sheriff of the parish in which he resides, or in the case of Orleans Parish the superintendent of police, for a permit to possess firearms. The felon shall be entitled to possess the firearm upon the issuing of the permit.
(3) The sheriff or superintendent of police, as the case may be, shall immediately notify the Department of Public Safety, in writing, of the issuance of each permit granted under this Act. Acts 1975, No. m, § 2.

In Sanders, the court pretermitted discussion of constitutional issues of double jeopardy and due process by deciding the issue presented on the basis of legislative intent. See Sanders, 337 So.2d at 1134. Similarly, our current analysis will focus on the clear language of the statute, its context and its purpose.

Statutory Language

In Sanders, this court noted that the terms of the statute did not “indicate that a greater penalty could be superimposed by multiple-billing” and from that determined that the intent of the legislature was to prevent habitual offender enhancement of a sentence under La. R.S. 14:95.1. Id., 337 So.2d at 1135. Sanders contrasted the lack of explicit language 110in the firearms statute with explicit language in a then-recent amendment of La.C.Cr.P. art. 893, which indicated that the state could multiple bill a person on the basis of a suspended sentence. Id.

After reviewing the language of La. R.S. 14:95.1, we find that there is nothing in the statute, both as originally enacted and as now configured, which explicitly _Jjjindicates that a penalty imposed under this statute may be subsequently enhanced. The converse is also true. There is nothing in the language of the statute which explicitly prohibits a penalty imposed under this statute from being subsequently enhanced. Consequently, the actual wording of the statute does not address the issue of subsequent enhancement of the statute’s penalty.

We find our previous reasoning in Sanders to be faulty in this respect. Although the legislature did include specific language regarding enhancement in La. C.Cr.P. art. 893, the lack of explicit language in the statute at issue does not automatically mean that the habitual offender law does not apply. Instead, we find the lack of such specific language in the firearm statute to be similar to many other felony criminal statutes, which rely on the general applicability of the language of the habitual offender law to enhance the penalties of those crimes when there are prior felony convictions. La. R.S. 15:529.1 provides for enhancement of penalties for “[a]ny person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state ... ”. As this court has previously noted, there is no restriction on the type of felony which may be enhanced by the habitual offender law. State v. Murray, 357 So.2d 1121, 1124 (La.1978), rev’d on other grounds, State v. Skipper, 2004-2137 p. 24 (La.6/29/05), 906 So.2d 399, 416. Only by reading into the statute something which is not there, ie. a specific prohibition as to further enhancement, can the result in Sanders be reached. We find that the language of La. R.S. 14:95.1 does not support a finding that a penalty imposed under its provisions may not be enhanced by the habitual offender law.

Statutory Purpose

We find there is nothing in the statute’s purpose which would prevent enhancement of a penalty imposed under its provisions. This court has previously determined the purpose of La. R.S. 14:95.1, as follows:

It is beyond doubt that the statute challenged in the instant case [La. R.S. 14:95.1] was passed in the interest of the public and as an exercise of the police power vested in the legislature. Its purpose is to limit the possession of firearms by persons who, by their past commission of certain specified serious felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity.

State v. Amos, 343 So.2d 166, 168 (La.1977).

Similarly, there is nothing in the purpose of the habitual offender law which would prohibit enhancement of a sentence under La. R.S. 14:95.1. “The purpose of the Habitual Offender Law is to deter and punish recidivism.” State v. Everett, 2000-2998 p. 7 (La.5/14/02), 816 So.2d 1272, 1276.

Further, we do not find that the combination of these two statutes would lead to a result unintended by their purposes. We do not find that a sentence imposed under La. R.S. 14:95.1, enhanced as a habitual offender, would negate the purpose of limiting the possession of firearms by persons who have already demonstrated a dangerous disregard for the law and who present a potential threat of further or future criminal activity. In fact, a person who, having been convicted of multiple felonies, now possesses or conceals a firearm in violation of the law, is precisely the sort of | ^person whose punishment should be enhanced as a multiple offender.

Statutory Context

Turning now to the context of the statute, we see that our determination in Sanders was perhaps unduly influenced by the manner of the statute’s enactment. La. R.S. 14:95.1 was enacted in 1975 in the same act which amended provisions of the previously existing La. R.S. 14:95. La. R.S. 14:95 makes criminal the intentional concealment of a firearm, and various other offenses concerning other types of weapons, and is punished as a misdemean- or for a first offense. Second and subsequent convictions of La. R.S. 14:95 are punishable as felonies. In fact, in the same legislative act which enacted La. R.S. 14:95.1, a separate section amended the penalty sections of La. R.S. 14:95 to provide for a sentence of imprisonment of up to five years for a second conviction, and up to ten years imprisonment on a third or subsequent conviction.

A review of the reasoning in Sanders makes clear that the court previously considered La. R.S. 14:95.1 as some sort of extension of La. R.S. 14:95. Sanders notes that, by passing La. R.S. 14:95.1, the legislature raised the maximum penalty for carrying a concealed weapon from a misdemeanor to a felony with a punishment of ten years “because the person has committed prior felonies.” Sanders, 337 So.2d at 1133. However, in La. R.S. 14:95.1, “the legislature enacted special legislation to punish a person who has been convicted of certain enumerated felonies and who possesses a firearm or concealed weapon.” State v. Clement, 368 So.2d 1037, 1039 (La.1979). Although there is some overlap with regard to making the concealment of a firearm a crime, La. R.S. 14:95 does not make criminal the mere possession of a firearm, as is done by La. R.S. 14:95.1 when the additional element of a prior felony conviction is also present.

Nevertheless, in Sanders, we characterized the enactment of La. R.S. 14:95.1 as an “increased penalty” imposed on a possessor or concealor of a weapon who was a felon and made assumptions about both the reasons for the statute’s enactment and presumptions about how the statute should apply. We held:

[w]e assume that the legislature was prompted to make this change because a person multiple-billed after conviction under the original statute, R.S. 14:95, could usually be given only a very short sentence. Since the legislature in passing R.S. 14:95.1 has in that very statute provided enhanced penalties for the act of concealing a weapon when the concealor is a felon, we therefore presume that it must not have intended the multiple enhancement incident to the state’s using R.S. 15:529.1 to further enhance the penalty. (Emphasis added)

However, our assumption, that the purpose behind the legislature’s enactment of La. R.S. 14:95.1 was to provide for greater punishment of a multiple offender of La. R.S. 14:95, was invalidated in that the very act which created La. R.S. 14:95.1 also included in another section harsher punishments for second and subsequent offenders of La. R.S. 14:95. Consequently, our presumption, that the legislature did not intend for habitual offender enhancement of a penalty imposed under La. R.S. 14:95.1, was unfounded. La. R.S. 14:95.1 set forth a separate and distinct felony, the penalty for which is unrelated to any previous felony conviction. Compare State v. Cox, 344 So.2d 1024 (La.1977), superceded by statute as stated in State v. Goodin, 550 So.2d 801, 804 (La.App. 2 Cir.1989). Thus, as with a penalty imposed by other criminal statutes, the general applicability of the habitual offender law is not prohibited.

Nor was further analysis added by the court’s pronouncement in Firmin. Indeed, Firmin, a three-paragraph per curiam opinion, states without additional reasoning that the “rule of State v. Sanders, supra, is still applicable and the defendant should not have been sentenced as a multiple offender.” Id., 354 So.2d at 1355.

We hold today that our determination in both Sanders and Firmin, that a sentence imposed under La. R.S. 14:95.1 may not be further enhanced under the habitual offender statute, was in error, and these cases are overruled to the extent that they stand for this proposition. However, we note that the other holding in Sanders, that the state may not seek multiple enhancement of a defendant’s sentence on the basis of the same set of prior convictions, was recently cited with approval by this court in State v. Ruiz, 2006-1755 p. 12-13 (La.4/11/07), 955 So.2d 81, 89. Since in this case the state used a different prior felony conviction as the element in charging a violation of La. R.S. 14:95.1 from the prior felony conviction used in the multiple offender bill of information to enhance the firearms sentence, we are not required to re-evaluate that portion of the holding in Sanders.

| r(Statutory Intent

Upon our re-evaluation of the interpretation and statutory intent of La. R.S. 14:95.1, we find that our earlier holding in Sanders, to the extent that we held that a sentence imposed under La. R.S. 14:95.1 may not be enhanced as an habitual offender, was in error. Instead, we hold that, in order to give a genuine construction to La. R.S. 14:95.1, according to the fair import of the words of the statute, taken in their usual sense, and in connection with the context and with reference to the purpose of the provision, a sentence imposed under La. R.S. 14:95.1 may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearms conviction is not also used as a prior felony conviction in the habitual offender bill of information.

Applicability to Baker

During oral argument, the question was raised as to what effect there should be for the defendant herein should we rule that our holding in Sanders was in error. Our court most recently explained the answer to this question in Ruiz, which held that jurisprudence correcting erroneous statutory construction should apply retroactively to non-final convictions. Id., 2006-1755, p. 5, 955 So.2d at 85. Consequently, our holding is retroactively applicable to Baker, the defendant, and to any other criminal defendant whose conviction is not yet final or pending on direct appeal.

CONCLUSION

We find that a sentence imposed under La. R.S. 14:95.1 may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearm conviction is not also used as a prior felony conviction in the multiple offender bill of information. To the extent that cases state to the contrary, including State v. Sanders, 337 So.2d 1131 (La.1976) and State v. Firmin, 354 So.2d 1355 (La.1978), they are overruled.

AFFIRMED.

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

JOHNSON, J., dissents.

CALOGERO, Chief Justice,

dissenting.

hi respectfully dissent from the majority opinion. In this court’s seminal opinion in State v. Sanders, 337 So.2d 1131 (La.1976), we held that the state may not multiple-bill a person who has been convicted under La.Rev.Stat. 14:95.1 of being a convicted felon in possession of a firearm by using in the multiple offender bill the same felony conviction or convictions alleged as elements of the firearms offense. Regarding the legislative intent behind the penalty provision, we specifically observed that “the penalty provisions enacted in La.Rev. Stat. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant’s previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure to remain available as a vehicle for further enlargement of the penalty.” Sanders, 337 So.2d at 1135.

In State v. Firmin, 354 So.2d 1355 (La.1978), this court then specifically applied the Sanders rationale to facts identical to the instant case and held that the state may not adjudicate and sentence a defendant as a habitual offender under La.Rev. Stat. 15:529.1 after his conviction in the same prosecution for being a felon in possession of a firearm, even when the conviction or convictions used to charge the defendant as a habitual offender are not the same convictions used to convict him of hthe firearm offense. Thus, in Firmin and Sanders, this court identified and enforced the intent of the legislature regarding sentencing enhancement for violations of La.Rev.Stat. 14:95.1 under the habitual offender law, La.Rev.Stat. 15:529.1. Because we did not base our ruling in Fir-min and Sanders on any perceived constitutional constraint upon the legislature, the legislature, had it disagreed with our assessment of its legislative intent, could certainly have revised the law. The legislature has chosen not to do so for almost thirty years.

Instead, today a majority, apparently emboldened by the refusal of a subordinate appellate court to follow jurisprudence from this court directly on point, has decided to revise the sentencing scheme identified by this court in Sanders and Firmin as embodying the intent of the legislature. In a baffling decision, the appellate court, though it acknowledged this court’s controlling precedent in Firmin, chose to cite and misapply jurisprudence addressing entirely different issues. Although the majority reproofs the appellate court’s approach, it now ratifies the lower court’s action by upsetting nearly thirty years of settled law. In my view, there is no rational or legal basis for overruling Firmin and Sanders in part as the majority does today. Accordingly, I would vacate the defendant’s habitual offender adjudication and sentence under La.Rev.Stat. 15:529.1 and reinstate the sentence imposed by the trial court: eleven and one-half years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

ON APPLICATION FOR REHEARING

Rehearing denied.

CALOGERO, Chief Justice,

granting rehearing and assigning reasons.

hi would grant rehearing in this matter on two bases.

First, for the reasons assigned in my dissent on original hearing, I believe there was no rational or legal basis for overruling State v. Firmin, 354 So.2d 1355 (La.1978), and State v. Sanders, 337 So.2d 1131 (La.1976). State v. Baker, 06-2175 (La.10/16/07), 970 So.2d 948, 2007 WL 2994601, Calogero, C.J., dissenting. This court in those cases identified and enforced the legislative intent regarding sentencing enhancement for violations of La. Rev.Stat. 14:95.1 under the habitual offender law, La.Rev.Stat. 15:529.1, and the legislature has presumably agreed with that interpretation as it did not revise the law thereafter.

Second, I believe the defendant makes a credible argument that the majority’s wholly new and substantive interpretation of La.Rev.Stat. 15:529.1 and La.Rev.Stat. 14:95.1 should not retroactively apply to his guilty plea. The law as interpreted by this court at the time of the commission of the offense, as well as when the defendant entered his guilty plea, clearly and unequivocally provided that a sentence for a violation of La.Rev.Stat. 14:95.1 could not be further enhanced under La.Rev.Stat. 15:529.1; therefore, as the defendant asserts, in entering his guilty plea, he and his counsel reasonably relied on this court’s clear pronouncement of the law. Now that the majority has substantively changed the law and made that change retroactive |¡>to the defendant, his plea, premised as it was on the law in effect at the time of the commission of the offense and when he entered his plea, is rendered unknowing and involuntary.

In Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001), the United States Supreme Court noted that a judicial change in the law could deprive a defendant of his due process rights — in particular, notice, foreseeability, and the right to fair warning — if the change were unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, citing Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). In the instant case, surely the majority’s substantive reinterpretation of the statutes was unexpected, as this court had specifically identified and enforced the legislative intent behind the statutes, and the legislature had left that interpretation in place for decades. Moreover, the majority’s new interpretation, which is certainly more onerous for this defendant, is not defensible given this court’s prior statements of the law, as I set forth in my earlier dissent. Accordingly, I believe that retroactive application of the majority decision to this defendant violates his due process rights, and, at a minimum, he should be allowed to withdraw his plea of guilty.

      . State v. Baker, 40,997 (La.App. 2 Cir. 6/28/06), 935 So.2d 366.

      . State v. Baker, 2006-2175 (La.5/11/07), 955 So.2d 1269.

      . See State v. Murray, 357 So.2d 1121, 1124 (La.1978), rev’d on other grounds, State v. Skipper, 2004-2137 p. 24 (La.6/29/05), 906 So.2d 399, 416; State v. Hayes, 412 So.2d 1323, 1326 (La.1982); State v. Ruiz, 2006-1755 p. 12-13 (La.4/11/07), 955 So.2d 81 89.

      . See State v. Cox, 344 So.2d 1024, 1025 (La.1977), superceded by statute as stated in State v. Goodin, 550 So.2d 801, 804 (La.App. 2 Cir.1989); State v. Holland, 356 So.2d 427, 428 (La.1978); State v. Young, 357 So.2d 503, 504 (La.1978); State v. Williams, 358 So.2d 943, 947 (La.1978); State v. Morris, 429 So.2d 111, 122 (La.1983).

      . See also State v. Walker, 2000-334 p. 4 (La.App. 1 Cir. 12/22/00), 775 So.2d 663, 665, writ denied, 2001-235 (La.12/7/01), 803 So.2d 23.

      . Since our holding in Sanders, La. R.S. 14:95.1 has withstood constitutional challenges on several grounds: State v. Amos, 343 So.2d 166 (La.1977) (statute not a violation of 1974 La. Const. art. 1, § 11; U.S. Const. Amend. II guarantee of the right to keep and bear arms not carried over into Amend. XIV so as to be applicable to the states); State v. Clement, 368 So.2d 1037 (La.1979) (statute not violative of U.S. Const. Amend. XIV or 1974 La. Const. art. 1, § 3).

      . Subsequent to its enactment, the legislature amended the statute several times to expand the list of enumerated prior felonies which may serve as an element of the offense, and once to increase the penalty from "three nor more than ten” years imprisonment to "ten nor more than fifteen” years imprisonment. See Acts 1980, No. 279; Acts 1985, No. 947; Acts 1990, No. 328; Acts 1992, No. 403; Acts 1994 3rd Ex.Sess., No. 28; Acts 1995, No. 987; Acts 2003, No. 674.
      The statute currently provides:
      § 95.1. Possession of firearm or carrying concealed weapon by a person convicted of certain felonies
      A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instru-mentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541(14.1), or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who 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 one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
      B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.
      C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
      (1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
      (2) Upon completion of sentence, probation, parole, or suspension of sentence the convicted felon shall have the right to apply to the sheriff of the parish in which he resides, or in the case of Orleans Parish the superintendent of police, for a permit to possess firearms. The felon shall be enti-tied to possess the firearm upon the issuing of the permit.
      (3)The sheriff or superintendent of police, as the case may be, shall immediately notify the Department of Public Safety, in writing, of the issuance of each permit granted under this Section.

      . The penalty provisions of the following felony offenses contain no language regarding the enhancement of the sentence under the habitual offender law. However, there can be no doubt that these penalties are subject to the general applicability of the habitual offender law. The following listing is non-inclusive and illustrative only: (1) Manslaughter, La. R.S. 14:31 (B); "[wjhoever commits manslaughter shall be imprisoned at hard labor for not more than forty years....”; (2) Aggravated battery, La. R.S. 14:34; "[wjhoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both."; (3) Forcible rape; La. R.S. 14:42.1(B); "[wjhoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.”; (4) Simple rape, La. R.S. 14:43(B); "[wjhoever commits the crime of simple rape shall be imprisoned, with or without hard labor, without benefit of parole, probation;, or suspension of sentence, for not more than twenty-five years."; (5)Simple kidnapping, La. R.S. 14:45(B), "[wjhoever commits the crime of simple kidnapping shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than five years, or both.”; and (ó)Aggravated arson, La. R.S. 14:51, "[wjhoever commits the crime of aggravated arson shall be imprisoned at hard labor for not less than six nor more than twenty years, and shall be fined not more than twenty-five thousand dollars. Two years of such imprisonment at hard labor shall be without benefit of parole, probation, or suspension of sentence.”

      . By 1995 amendment, the statute added increased penalties for a first conviction (not less than one year nor more than two years, with or without hard labor and/or a fine of not more than $2000) when the firearm was used in the commission of a crime of violence.

      . See 1975 Acts, No. 492, § 1.

      . Except for an enemy alien, a situation not at issue here. See former. La. R.S. 14:95(2), and current La. R.S. 14:95(A)(2).

      . Sanders, 337 So.2d at 1133. See State v. Mose, 412 So.2d 584, 585 (La.1982) (there are three elements necessary to sustain a conviction under La. R.S. 14:95.1 :(1) status of a defendant as a convicted felon; (2) possession [or concealment] by the defendant; and (3) that the instrumentality possessed [concealed] was a firearm).

      .“Even if multiple billed as a second offender, when that second conviction is for a violation of R.S. 14:95, carrying a concealed ‘ weapon, a person can be sentenced only to a minimum of two months and a maximum of one year; as a third offender he can be sentenced to a minimum of three months and a maximum of one year; and as a fourth offender to a minimum of twenty years and a maximum of life imprisonment. These figures show that, even if enhanced by a multiple-bill under R.S. 15:529.1, the penalties available are minimal, except when the defendant is a fourth offender.”

      . In Cox, this court relied upon Sanders to hold that a sentence imposed for simple escape could not be further enhanced under habitual offender provisions. At the time Cox was decided, the simple escape statute provided for a double scale of punishment: "if the offense is committed by a person sentenced to the Department of Corrections, i.e., a felon, the escape is likewise a felony; but, if the offense is committed by one not sentenced to the Department of Corrections, it is a misdemeanor for which a lessor penalty is provided." Cox, 344 So.2d at 1025. Consequently, in the case of simple escape, the grade of the prior offense determined whether the punishment for simple escape was a misdemeanor or a felony. Subsequent to our decision in Cox, the simple escape statute was amended by Act 413 of 1985 to provide that the penalty was imprisonment punishable with or without hard labor, and therefore, a felony. "After the amendment, the penalty for simple escape is no longer enhanced because of a previous felony conviction. The crime of simple escape is itself a separate and distinct felony, the penalty for which is unrelated to any previous felony conviction.” State v. Walker, 2000-334 p. 5 (La.App. 1 Cir. 12/22/00), 775 So.2d 663, 665-666.

      . It is well-settled that the function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch. E.g., State v. Dick, 06-2223, pp. 8-9 (La.1/26/07), 951 So.2d 124, 130. Furthermore, the rules of statutory construction are designed to ascertain and enforce the intent of the legislature. Id. Finally, legislation is the solemn expression of legislative will, and, thus, the interpretation of legislation is the search for legislative intent. Id.


source: Caselaw Access Project

license: Public Domain

text:
    In re Samuel H. THOMAS.
    No. 2007-B-2326.
    Supreme Court of Louisiana.
    Dec. 12, 2007.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Samuel H. Thomas, and the Office of Disciplinary Counsel,

IT IS ORDERED that Samuel H. Thomas, Louisiana Bar Roll number 9526, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ John L. Weimer Justice, Supreme Court of Louisiana


author: PER CURIAM. CALOGERO, Chief Justice,

text:
    Christi Lynn Fowler COOK v. Porter Alan COOK.
    No. 2007-CJ-2091.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   PER CURIAM.

hln this child custody matter, the father seeks review of a ruling of the court of appeal which reversed a judgment of the district court modifying a custody order. For the reasons that follow, we reverse the judgment of the court of appeal and reinstate the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

Christi Lynn Fowler Cook (“Christi”) and Porter Alan Cook (“Porter”) were married in 1987, and had four children. In 2001, the couple separated. Following the separation, Christi entered into a relationship with Shannon Maloney (“Shannon”).

After the separation, Christi and Porter voluntarily entered into a joint custody implementation plan, providing that the parents would share custody equally, two weeks with each parent alternatively. The plan also included a provision referred to as the “Shannon clause,” which provided:

Neither parent shall allow Shannon Ma-loney to be associated with the minor children and thereby allowing her to live or visit in the home at 2961 Highway 4, Ringgold, Louisiana.

In 2002, the parties divided their community property. Porter retained the family home in Ringgold, and Christi moved to Caddo Parish.

| ¡.In 2003, Porter filed a request for change of custody and motion for contempt. In support, he argued that Christi violated the “Shannon clause” by living with Shannon. Additionally, he asserted that her move to Caddo Parish resulted in a change in circumstances which change was not in the best interest of the children.

After a pretrial conference in June 2004, the parties entered a stipulated judgment in which Christi admitted she had violated the prior custody agreement by allowing Shannon to visit her while the children were with her. The court imposed a six-month contempt sentence, suspended on the condition that Christi pay certain costs, relocate to Bienville Parish and fully comply with the original custody agreement.

In April 2005, Porter filed a second motion to change custody and for contempt. He alleged that Christi had continued to violate the “Shannon clause” in the original custody agreement.

In response, Christi moved to alter the original custody agreement. She sought to strike the “Shannon clause” from the agreement and to be named domiciliary parent.

At the hearing on the motions, Christi admitted that she remained involved with Shannon. She stated that she lived with Shannon when Porter had custody of the children. When she had physical custody of the children, Shannon lived in an adjacent trailer. Christi also discussed the constraints caused by the need to provide transportation for Shannon. Although Christi denied violating the “Shannon clause,” she admitted that Shannon attended the children’s special events with her. However, ^Christi explained that the couple did not sit with or next to the children on these occasions.

Shannon testified that she had moved to Bossier City in May 2006, and she had never been at Christi’s trailer or in her car when the children were present since the stipulated judgment in which Christi admitting violating the “Shannon clause.” Several additional witnesses testified concerning the effect of Christi’s relationship with Shannon as it relates to the best interests of the children.

At the conclusion of the hearing, the district court found Christi in contempt for violating the “Shannon clause,” sentencing her to six months, suspended, and two years supervised probation. The district court found a pattern of misconduct which demonstrated Christi’s disregard for the best interests of the children. The court observed that Christi had encouraged the children to deceive their father, and that Christi had attempted to deceive the court about where Shannon lived. The court further noted that the court-appointed expert, James Fullilove, a mental health counselor, opined that Shannon did not represent an appropriate parental figure for the children, although Christi insisted that Shannon assume such a role. In addition, the court cited Mr. Fullilove’s opinion that Christi’s relationship with Shannon was not in the children’s best interests. Based on these findings, the district court modified the custody order, appointing Porter as the domiciliary parent and awarding him custody during the school year. The court granted Christi physical custody during the summer holidays.

Christi appealed, arguing that the trial court erred in modifying the custody order and in finding her in contempt. In a split decision, a five-judge panel of the court of appeal reversed in part and affirmed in part.

|4The majority initially noted the trial court failed to make a finding that there had been a material change in circumstances. As a result, the court found the trial court committed legal error, requiring it to review the evidence de novo. Based on its de novo review, the court found “precious little record evidence” to support the district court’s conclusion that Christi violated the “Shannon clause.” As a result, the court found there was no evidence of a material change in circumstances and reversed that portion of the trial court’s judgment modifying the initial custody agreement. Likewise, the court of appeal reversed the portion of the trial court’s judgment holding Christi in contempt.

A dissenting judge found no error in the ruling of the district court modifying the custody arrangement. The dissenting judge reasoned that Christi’s deceptions and continued involvement with Shannon “showed her efforts and intent to have Shannon associated and involved in the children’s lives contrary to what she agreed to with their father.”

Porter now applies to this court, seeking review of the judgment of the court of appeal.

DISCUSSION

It is well settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. State in the Interest of S.M.W., 00-3277 (La.2/21/01), 781 So.2d 1223. It is important that the appellate court not substitute its opinion when it is the juvenile court who is in the unique position to see and hear the witnesses as they testify. In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47. The trier of fact is not disadvantaged | sby the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record. Id.

In the instant case, the district court made a finding of fact that Porter proved a change in circumstances based upon Christi’s repeated violations of the provision of the custody order mandating that she not allow Shannon to associate with the children. In making this finding, the district court observed that Christi previously admitted to the court in 2004 that she violated the custody order, and noted Christi had tried to deceive the court as to Shannon’s living arrangements, representing that Shannon lived a mile away from her, when she in fact lived next door. The court further determined Christi was not credible when she testified that she did not intend for the children to have contact with Shannon, explaining:

It is extremely hard for this court to believe that while [Shannon] was living next door to [Christi] that [Shannon] had no contact whatsoever with the minor children while they were visiting with their mother. The evidence indicated that for quite some time [Christi] had to take [Shannon] to work because [Shannon] had no transportation. It is doubtful that this could be done morning, afternoon and night, depending on [Shannon’s] shift, without the minor children knowing what was going on and without the minor children being in direct contact with [Shannon] at either [Christi’s] trailer or [Shannon’s] trailer.

Considering the record as a whole, we cannot say the district court was clearly wrong in finding Christi’s actions demonstrated an intent to have Shannon associated with the children and involved in their lives, contrary to the custody order. Christi’s repeated failure to abide by the court’s order constitutes a change in circumstances which justifies the district court’s modification of custody as well as its finding of contempt. Accordingly, we must reverse the judgment of the court of appeal insofar as it reverses the district court’s judgment.

| (¡DECREE

For the reasons assigned, the writ is granted. The judgment of the court of appeal is reversed insofar as it reverses the judgment of the district court. The judgment of the district court modifying the joint custody implementation plan by making Porter Alan Cook the primary custodial parent and holding Christi Lynn Fowler Cook in contempt is reinstated.

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

CALOGERO, Chief Justice,

dissenting.

bl dissent from the majority’s action today and would have denied the writ application, because I find no error in the court of appeal’s decision to review the matter de novo. Alternatively, I would have granted and docketed the case, so that this court could have had benefit of the record, full briefing, and oral argument, rather than take away this mother’s custody award and affirm the contempt holding and sentence, based solely on the father’s writ application.

      . Christi opposed a portion of this consent judgment. She appealed a portion of the decree, stating that if she violated the Shannon clause "there shall be a change of custody and Porter Alan Cook shall be designated as the primary domiciliary parent[.]" The court of appeal reversed this "automatic nonjudicial change" provision. Cook v. Cook, 40,572 (La.App. 2nd Cir.1/25/06), 920 So.2d 981.

      . Apparently, Christi drives Shannon to work.

      . The order also provided that the parents equally share custody of the children during other holidays, and allowed Christi visitation of the children every other weekend during the school year.

      . The court affirmed the portion of the trial court's order refusing to strike the “Shannon clause.” This portion of the court of appeal’s judgment is not at issue.


author: PER CURIAM.

text:
    In re Robert E. PATRICK.
    No. 2007-B-1222.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   | .ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Robert E. Patrick, a disbarred attorney.

PRIOR DISCIPLINE

Before we address the current charges, we find it helpful to review respondent’s disciplinary history since he was admitted to the practice of law in Louisiana in 1983.

In 1991, respondent was admonished by the disciplinary board for the improper use of his client trust account. In 1995, the board admonished respondent for incompetence, failure to communicate with a client, and assessing an improper fee.

In September 1995, we suspended respondent from the practice of law for ninety days, fully deferred, for providing inaccurate information to clients and to courts in two criminal matters. In re: Patrick, 95-1621 (La.9/15/95), 600 So.2d 433.

In March 1999, we placed respondent on interim suspension for threat of harm to the public. In re: Patrick, 99-0410 (La.3/24/99), 733 So.2d 1180. In July 1999, we disbarred respondent. In re: Patrick, 99-0771 (La.7/2/99), 738 So.2d 539 (“Patrick I”). Respondent’s misconduct in Patrick I included commingling and ^conversion of client funds and submission of false evidence in an attempt to cover up his wrongdoing. Respondent has not sought readmission from his 1999 disbarment.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

FORMAL CHARGES

In 2004, the ODC filed four counts of formal charges against respondent, the second of which involved respondent’s failure to refund an unearned fee. Following a hearing, the hearing committee concluded that the ODC did not carry its burden of proving by clear and convincing evidence the misconduct alleged in the second count of the formal charges. The disciplinary board agreed with this finding and recommended that Count II be dismissed. The ODC did not object to the board’s recommendation as it pertains to the dismissal of Count II, and accordingly, the issues relating to Count II are not discussed herein.

Count I — The Smith Matter

In September 1998, Corinthian Smith retained respondent to represent his seventeen-year old daughter, Nicole Smith, who had been issued a misdemeanor summons after she attempted to use her mother’s driver’s license to enter a casino in Lake Charles. Based upon respondent’s misrepresentation to Mr. Smith that the charge against Nicole was a felony, Mr. Smith agreed to pay respondent $2,500 to handle the matter. Of the sum paid by Mr. Smith, $2,000 represented respondent’s ^attorney’s fees for defending the “felony” charge, with the remaining $500 to cover court costs and the fees associated with expungement. Respondent performed no work on Nicole’s behalf other than accompanying her to the Sulphur City Court for arraignment, where in accordance with standard practice she pled guilty and was fined $100. The fine and court costs were paid by Mr. Smith, and were not taken from the cost funds previously paid to respondent for that purpose.

The ODC alleges that respondent’s conduct in the Smith matter violated the following provisions of the Rules of Professional Conduct: Rules 1.5 (fee arrangements) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Counts III and IV — The Unauthorized Practice of Law Matters

Respondent’s disbarment in Patrick I became effective on July 16, 1999. Thereafter, respondent opened an office in Rag-ley, Louisiana under the trade name “The Legal Research Center,” and proceeded to represent and provide legal advice to clients. One such client was Louis Burge, whom respondent represented in connection with a worker’s compensation claim. Respondent provided legal advice to Mr. Burge and attempted to negotiate a settlement on his behalf in 2000. Likewise, in 2000, Horace Douglas retained respondent to represent him in a criminal matter. Mr. Douglas paid respondent $1,000 for the representation.

The ODC alleges that respondent’s conduct in the Burge and Douglas matters constitutes the unauthorized practice of law, which is a crime pursuant to La. R.S. Jj37:213. The ODC further alleges that respondent violated the following provisions of the Rules of Professional Conduct: Rules 5.5(a) (engaging in the unauthorized practice of law), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c).

DISCIPLINARY PROCEEDINGS

As previously noted, the ODC filed formal charges against respondent in 2004. The ODC sought the imposition of permanent disbarment for respondent’s misconduct. Respondent answered the formal charges and denied any misconduct. This matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

Considering the evidence and testimony presented at the hearing, the hearing committee made the following findings of fact and law:

1¡;1. Corinthian Smith retained respondent to represent his daughter on a misdemeanor filed in the Sulphur City Court, Ward 4.
2. Respondent told Mr. Smith that his daughter faced a felony charge. This was an intentional act of deception.
3. Respondent knowingly misrepresented the nature and severity of the charge to Mr. Smith.
4. Respondent quoted a fee to Mr. Smith of $2,500, which was to have included representation in the pending charge, the payment of any fines or costs resulting therefrom, and the preparation of an expungement.
5. Respondent told Mr. Smith that he had talked to the FBI and obtained a reduction in the charge to a misdemeanor. This was an intentional act of deception.
6. Respondent knowingly misrepresented his efforts on behalf of Mr. Smith’s daughter. No such contact was made, nor would it have had any impact on the charge faced by his client if it had taken place. Respondent performed no services for his client in the Smith matter, other than to stand with his client at the time of her guilty plea.
7. The sentence obtained by Mr. Smith’s daughter is consistent with that to be rendered for similarly situated but unrepresented defendants in Sulphur City Court.
8. The fee charged for respondent’s services in the Smith matter was grossly excessive, constituting a violation of Rule 1.5.
9. Respondent’s deception of Mr. Smith constitutes a violation of Rule 8.4(c).
10.Respondent’s failure to refund the unearned portion of his fee to Mr. Smith constitutes a violation of Rule 1.5.
| ⅜11. While disbarred by the Louisiana Supreme Court, respondent represented Louis Burge in a worker’s compensation claim, constituting a violation of Rule 5.5(a).
12. Respondent acted in the manner of an attorney on behalf of Mr. Burge in his communications with the adjuster assigned the Burge claim and intentionally engaged in the unauthorized practice of law in violation of La. R.S. 37:213.
13. Respondent’s conduct in the Burge matter involved dishonesty, fraud, deceit, and misrepresentation in violation of Rule 8.4(c).
14. After his disbarment, respondent held himself out as the president of “The Legal Research Center, a Professional Consultant Corporation, Inc.”
15. Respondent was contacted by Horace Douglas, an inmate at Winn Correctional Center seeking legal services.
16. Respondent accepted a fee of $1,000 from the family of Horace Douglas to assist him in the preparation of an out of time criminal appeal or application for post conviction relief.
17. Despite respondent’s testimony that the Legal Research Center provided only educational services, documents introduced by respondent as Exhibits R.l and R.2 confirmed that it provided legal services such as legal analysis, legal writing and litigation.
18. In correspondence to Mr. Douglas and his mother, respondent expressed opinions with regard to the validity of certain claims for post conviction relief in violation of Rule 5.5(a) and La. R.S. 37:213.
19. Respondent specifically held himself out as an attorney to Horace Douglas and his mother, constituting conduct involving dishonesty, fraud, deceit, and misrepresentation in violation of Rule 8.4(c).

|7Based on these findings, the committee recommended that respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board generally accepted the hearing committee’s factual findings, and agreed that respondent violated the Rules of Professional Conduct as charged. The board determined that respondent violated duties owed to his clients, the public, and the legal profession. His actions were intentional, and the amount of actual injury is significant. Respondent converted the unearned fees of Mr. Smith and Mr. Douglas, and they have been deprived of these funds for lengthy periods of time. Moreover, by practicing law after his disbarment, respondent harmed Mr. Burge, Mr. Douglas, and the legal system. He jeopardized both individuals’ legal matters by practicing law when he was not authorized to do so.

The board determined that the following aggravating factors are supported by the record: prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, bad faith obstruction of the disciplinary process, substantial experience in the practice of law, and indifference to making restitution. The board found no mitigating factors are present.

Based on these findings, the board recommended that respondent be permanently disbarred. The board also recommended that respondent make the appropriate restitution to Mr. Smith and Mr. Douglas, and that he be assessed with all costs and expenses of these proceedings.

IsNeither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall 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, 348; 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.

The record in this matter reveals that respondent failed to return unearned fees, engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation, and practiced law after he was disbarred by this court. This conduct violated the Rules of Professional Conduct as charged in the formal charges.

Having found professional misconduct, we now turn to a discussion of an appropriate sanction. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). 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).

19It is well settled in the jurisprudence that the unauthorized practice of law by a suspended or disbarred attorney is a serious violation of the professional rules. Disbarment is clearly appropriate for such misconduct. However, in their respective reports, the hearing committee and the disciplinary board have concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment.

For purposes of the instant case, Guidelines 1, 8, and 9 are relevant. Those guidelines detail the following conduct:

GUIDELINE 1. Repeated or multiple instances of intentional conversion of client funds with substantial harm.
GUIDELINE 8. Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.
GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

Guideline 1 is clearly applicable to this case, as respondent’s failure to refund unearned fees paid by his clients resulted in a conversion of those funds to the 1 indetriment of his clients. Likewise, Guideline 8 is implicated by respondent’s failure to cease the practice of law after he was disbarred' in 1999. Finally, respondent’s conduct falls under Guideline 9. His unauthorized practice of law is unquestionably serious attorney misconduct and was preceded by his disbarment for prior instances of serious attorney misconduct.

In In re: Jefferson, 04-0239 (La.6/18/04), 878 So.2d 503, we addressed a case in which the attorney engaged in the unauthorized practice of law. In concluding the attorney must be permanently disbarred, we stated:

Respondent has flouted the authority of this court by practicing law after being prohibited from doing so. In the face of this indisputable evidence of a fundamental lack of moral character and fitness, we can conceive of no circumstance under which we would ever grant readmission to respondent. Accordingly, he must be permanently disbarred.

As in Jefferson, respondent’s actions reveal a fundamental lack of moral character and fitness. Given these facts, we can conceive of no circumstance under which we would ever grant readmission to respondent.

Accordingly, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, it is ordered that the name of Robert E. Patrick, Louisiana Bar Roll number 2044, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. | 1 1 Respondent shall provide ac-countings to his clients subject of the formal charges, and make full restitution of any unearned legal fees. 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.

      . In 2002, we considered a proceeding involving five counts of formal charges against respondent. These charges alleged serious misconduct by respondent, including the conversion of client and third-party funds. After considering the record, we found respondent guilty of violations which warranted disbarment; however, because the misconduct occurred during the same time frame as the misconduct at issue in Patrick I, we simply added the violations to respondent's record for consideration during any subsequent readmission proceeding. In re: Patrick, 01-1419 (La.3/15/02), 815 So.2d 804.

      . In his testimony at the formal hearing in this matter, respondent claimed that the Legal Research Center is not a law office, but an educational service for lay people to teach themselves "how to access the law.”

      . La. R.S. 37:213 provides in pertinent part as follows:
      A. No natural person, who has not first been duly and regularly licensed and admitted to practice law by the supreme court of this state, ... shall:
      (1) Practice law.
      (2) Furnish attorneys or counsel or an attorney and counsel to render legal services.
      (3) Hold himself or itself out to the public as being entitled to practice law.
      (4) Render or furnish legal services or advice.
      (5) Assume to be an attorney at law or counselor at law.
      (6) Assume, use, or advertise the title of lawyer, attorney, counselor, advocate or equivalent terms in any language, or any phrase containing any of these titles in such manner as to convey the impression that he is a practitioner of law.
      (7) In any manner advertise that he, either alone or together with any other person, has, owns, conducts, or maintains an office
      of any kind for the practice of law.
      * * *
      C. Any natural person who violates any provision of this Section shall be fined not more than one thousand dollars or imprisoned for not more than two years, or both.