text:
    RAPIDES PARISH POLICE JURY v. GRANT PARISH POLICE JURY.
    No. 2006-C-1151.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Grant Parish Police Jury; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 198,375; to the Court of Appeal, Third. Circuit, No. 05-268.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Eddie T. SCOTT and Karen P. Scott v. RED RIVER WATERWAY COMMISSION and The City of Bossier City.
    No. 2006-C-1153.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Bossier City City of; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. D, No. 112,435; to the Court of Appeal, Second Circuit, No. 41,-009-CA.

Denied.


text:
    Jace BONURA v. KAPPA SIGMA FRATERNITY, Mu Omega Chapter of the Kappa Sigma Fraternity, and Steadfast Insurance Company.
    No. 2006-CC-1154.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Kappa Sigma Fraternity; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. F, No. 2001-3156; to the Court of Appeal, First Circuit, No. 2006 CW 0400.

Denied.

VICTORY, J., would grant.


text:
    James W. TOWNSEND, et al. v. TRUSTEES OF LOUISIANA COLLEGE, et al.
    No. 2006-C-1156.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Townsend, James W. et al.;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. E, No. 219,569-E; to the Court of Appeal, Third Circuit, No. CA 05 01283.

Denied.

TRAYLOR, J., recused.


text:
    Wendy FUNK, et al. v. Richard J. CLEMENT, M.D., et al.
    No. 2006-C-1167.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Clement, Richard J.; Clement, Emily Sue; Richard J. Clement Intervivos Trust; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Cal-casieu, 14th Judicial District Court Div. A, No. 95-138; to the Court of Appeal, Third Circuit, No. 05-966.

Denied.


text:
    SOUTHERN TREATS, INC. f/k/a Christopher Scott Ferris d/b/a Southern Treats v. TITAN PROPERTIES, L.L.C., Porters of Louisiana, L.L.C., and Mark Porter.
    No. 2006-C-1170.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Titan Properties L.L.C.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. K, No. 493,174-A; to the Court of Appeal, Second Circuit, No. 40,873-CA.

Denied.


text:
    PACE ROYALTY TRUST FUND, INC. v. Ben G. O’NEAL, et al. Dzurik Interest, Inc. v. Ben G. O’Neal, et al.
    No. 2006-C-1197.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re O’Neal, Ben G.; Webb, Sally Adrienne O’Neal; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Desoto, 11th Judicial District Court Div. B, Nos. 65,361, 65,360; to the Court of Appeal, Second Circuit, No(s). 40841-CA, 40,-842-CA.

Denied.


text:
    Wade T. VERGES v. Donna Swisshelm VERGES.
    No. 2006-CC-1200.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Verges, Wade T.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 94-11670; to the Court of Appeal, First Circuit, No. 2006 CW 0449.

Denied.


text:
    Emilie MEADOWS v. J.C. PENNEY COMPANY, INC., et al.
    No. 2006-C-1217.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Dameron, Randy; J.C. Penney Company Inc. et al.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. C, No. 217,228; to the Court of Appeal, Third Circuit, No. CA 05-1327.

Denied.


text:
    Janie ALLEN (Matthews) v. STATE of Louisiana, Louisiana School for the Deaf.
    No. 2006-C-1218.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Louisiana State of; Louisiana School for the Deaf; — Defendant(s); Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation, Dist. # 5, No. 04-03218; to the Court of Appeal, First Circuit, No. 2005 CA 1076.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Richard RYAN v. BLOUNT BROTHERS CONSTRUCTION, INC. Louisiana Health Service & Indemnity Company and Richard Ryan v. Ryan Construction.
    No. 2006-C-1219.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Employers Self Insurers Fund; Management Services U.S.A.; — Other(s); Applying for Writ of Certiorari and/or Review Office of Worker’s Comp. Dist. 1W, Nos. 03-02830, 03-02834,; to the Court of Appeal, Second Circuit, No. 40,845-WCA.

Denied.


text:
    Roland P. JONES v. The LAW OFFICES OF ANTHONY G. BUZBEE, P.C., Anthony G. Buzbee, Stern, Miller & Higdon, and Jeffrey M. Stern, Ramsey Jones and Clarence Jones.
    No. 2006-C-1228.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Stern Miller & Higdon; Stern, Jeffrey M.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 2004-4986; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0289.

Denied.


text:
    Traci NEWSOM and Emily Johnson v. LOUISIANA FARM BUREAU INSURANCE COMPANY, Allstate Insurance Company and Lisa Belanger.
    No. 2006-C-1229.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Newsom, Traci; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2003-10611; to the Court of Appeal, First Circuit, No. 2005 CA 0111.

Denied.

JOHNSON, J., would grant.


text:
    Larry Alan MILLER, et al. v. ALLSTATE INSURANCE COMPANY.
    No. 2006-C-1230.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Allstate Insurance Co.; — -Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 1999-0153; to the Court of Appeal, Third Circuit, No. 05-1113.

Denied.

VICTORY, J., would grant.


text:
    Joseph A. ALMERICO v. Peter L. DALE, Chief of Police, City of Harahan, Harahan Police Department and the City of Harahan.
    No. 2006-C-1232.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Almerico, Joseph A.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 617-629; to the Court of Appeal, Fifth Circuit, No. 05-CA-861.

Denied.

CALOGERO, C.J., would grant.

KIMBALL, J., would grant.

JOHNSON, J., would grant.


text:
    Wayne WATKINS v. ST. MARTIN PARISH SCHOOL BOARD.
    No. 2006-C-1244.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Watkins, Wayne; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. H, No. 66,753-H; to the Court of Appeal, Third Circuit, No. 05-1535.

Denied.


text:
    Mary Ann CRUM, et al. v. STATE of Louisiana, et al.
    No. 2006-C-1246.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Knobb, Brenda Crum; Wilson, Connie Crum; Dickerson, Cynthia Crum; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 492,036; to the Court of Appeal, Second Circuit, No. 41,059-CA.

Denied.


text:
    ARABELLA BUS BARN, L.L.C., Roger Ogden and Darryl Berger v. WHOLE FOODS MARKET, INC., Whole Foods Market Southwest, L.P., Sarpy Properties, L.L.C., Specialty Realty Development, L.L.C. and Arabella Station, L.L.C.
    No. 2006-C-1251.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Whole Foods Market Southwest L.P.; Specialty Realty Development L.L.C.; Arabella Station L.L.C.; Whole Foods Market Inc. et al.; Sarpy Properties L.L.C.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2001-19317; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0693.

Denied.


text:
    Jeffery FUNDERBURK v. NABORS DRILLING USA, INC.
    No. 2006-C-1252.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Nabors Drilling USA, Inc.; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation, Dist. # 2, No. 04-01335; to the Court of Appeal, Third Circuit, No. 05-1119.

Denied.

VICTORY, J., would grant.


text:
    Barbara MIGUEZ v. PLATINUM UNDERWRITERS REINSURANCE, INC. et al.
    No. 2006-C-1288.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Miguez, Barbara; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. 2003-3353; to the Court of Appeal, Third Circuit, No. 05-887.

Denied.


text:
    Mike HALAPIN v. NEW ORLEANS SAINTS.
    No. 2006-C-1292.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Halapin, Mike; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation, Dist. # 7, Southern Division, No. 01-03408; to the Court of Appeal, Fifth Circuit, No. 05-CA-805.

Denied.


text:
    Scott GUMINA v. NEW ORLEANS SAINTS & Louisiana Workers’ Compensation Corp.
    No. 2006-C-1293.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Gumina, Scott; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 7, No. 99-07970; to the Court of Appeal, Fifth Circuit, No. 05-CA-854.

Denied.


text:
    MILLER PLASTERING, INC. v. AMIGO BUILDING CORPORATION, et al.
    No. 2006-CC-1294.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Amigo Building Corporation et ah; Priola Construction Corporation; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. B, No. 70,-852B; to the Court of Appeal, Third Circuit, No. CW 06-00045.

Denied.


text:
    DELTA CHEMICAL CORP., Lee Mauberret and Ross Heidingsfelder v. Bill LYNCH as the Inspector General for the State of Louisiana, Office of the Inspector General of the State of Louisiana, Louisiana State Racing Commission and Sandra Jones.
    No. 2006-CC-1295.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Mauberret, Lee; Delta Chemical Corp.; Heidingsfelder, Ross; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2001-19425; to the Court of Appeal, Fourth Circuit, No(s). 2005-C-1414, 2005-C-1457.

Denied.


text:
    Meredith SILMON, et al. v. ALLSTATE INSURANCE COMPANY.
    No. 2006-CC-1296.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Silmon, Meredith et al.; Silmon, Jeff; — Plaintiffs); Applying for Supervisory and/or Remedial Writs First City Court of the Parish of Orleans, No. 05-50699; to the Court of Appeal, Fourth Circuit, No. 2005 C 0818.

Denied.


text:
    Barbara MIGUEZ v. PLATINUM UNDERWRITERS REINSURANCE, INC. et al.
    No. 2006-C-1316.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Liberty Mutual Fire Ins. Co.;— Other; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. 2003-3353; to the Court of Appeal, Third Circuit, No. 05-887.

Denied.


text:
    Julaine C. LEBLANC and Ovey Leblanc v. STATE FARM INSURANCE COMPANY, et al.
    No. 2006-C-1497.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re LeBlanc, Ovey; LeBlanc, Julaine C. et al.; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. E, No. 89-339; to the Court of Appeal, Third Circuit, No. 05-1086.

Denied.


text:
    State of Louisiana in the Interest of D.A.G.-DOB: 8/14/98, L.D.G.-DOB: 6/6/00, J.O.G.-DOB: 11/30/95, C.D.G.-DOB: 3/19/97, L.G.G.-DOB: 10/16/01.
    No. 2006-CJ-2149.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Y.G.; — Defendant; Applying for Writ of Certiorari and/or Review. Parish of Tangipahoa, City Court of Hammond, Nos. 20286, 20287, 20288, 20289, 20290; to the Court of Appeal, First Circuit, No. 2005 CJ 1806.

Denied.


text:
    MEDICAL REVIEW PANEL FOR the CLAIM OF James Randall BREWER.

      No. 2006-C-1290.

    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Lakeview Regional Medical Center; — Other; Applying for Writ of Certio-rari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2004-10007; to the Court of Appeal, First Circuit, No. 2005 CA 0666.

Denied.


text:
    Succession of Mrs. Viola Mary Tabor BADEAUX, Widow of J. Leslie Badeaux.
    No. 2006-C-1245.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   In re Fernandez, C. Raymond; — Other; Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. A, No. 18,714; to the Court of Appeal, First Circuit, No. 2005 CA 0737.

Denied.


author: CARAWAY, J. MOORE, J., DREW, J., PEATROSS, J.,

text:
    Max T. MALONE, et al., Plaintiff-Appellee v. Joe SHYNE, Defendant-Appellant.
    No. 41,781-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 2006.
    Writ Denied Sept. 5, 2006.

      Davis Law Office, LLC, by S.P. Davis, Sr., for Appellant.
    Wiener, Weiss & Madison, by M. Allyn Stroud, Shreveport, The Pesnell Law Firm, by Billy R. Pesnell, J. Whitney Pes-nell, W. Alan Pesnell, Shreveport, for Ap-pellees, Max T. Malone and James Edward Green.
    Bennett L. Politz, Shreveport, for Ap-pellee, Gary Loftin, in His Official Capacity as Clerk of Court in and for Caddo Parish, LA.
    Before BROWN, WILLIAMS, STEWART, GASKINS, CARAWAY, PEATROSS, DREW, MOORE, and LOLLEY, JJ.
   CARAWAY, J.

In 2003, Louisiana Governor Murphy J. Foster granted Joe Shyne a pardon following this court’s ruling in 2002 disqualifying Mr. Shyne as a candidate for public office pursuant to a 1998 amendment to Louisiana’s Constitution. Mr. Shyne had received a prior federal conviction of a felony. Governor Foster’s pardon expressly granted Mr. Shyne “a full pardon with restoration of all civil and citizenship rights.” Mr. Shyne has now attempted to qualify as a candidate for the Shreveport City Council, and plaintiff brings this action challenging his candidacy pursuant to La. Const, art. I, § 10(B)(1) which disqualifies convicted felons from holding public office. Nevertheless, the trial court’s ruling determined that the gubernatorial pardon power may not restore the right to hold office denied by Louisiana law. We now determine that the Governor of Louisiana did not exceed his authority by pardoning Mr. Shyne from the constitutionally enacted disqualification for public office. When the 1998 amendment placed that disqualification upon a Louisiana citizen, it simultaneously gave the governor a pardon power for its removal. Federal law allows Louisiana to impose this disqualification on a federally convicted felon and to also remove the disqualification by exercise of a gubernatorial pardon. Accordingly, we reverse the trial court’s decision.

Facts

On January 21, 1994, Joe Shyne entered a guilty plea to the crime of extortion by a public official in violation of 18 U.S.C. § 1951. A judgment of conviction was entered in the United States District Court, Western District of Louisiana on April 7, 1994, sentencing Mr. Shyne to twelve months and one day imprisonment and ordering him to surrender for service of sentence on May 2, 1994. Upon his release from prison, Mr. Shyne was placed on supervised release for a period of three years. The record contains evidence showing that Mr. Shyne was released from prison on March 15, 1995, and would have apparently then begun his three-year probationary term.

On August 29, 2003, Louisiana Governor Murphy J. Foster issued a “Grant of Clemency to Joe Shyne” upon recommendation of the Louisiana Board of Pardons. The Governor granted Mr. Shyne a “full pardon with restoration of all civil and citizenship rights, except for the right to own, possess, receive, ship, and transfer firearms to Joe Shyne and do hereby direct you to act accordingly, and for so doing this shall be your sufficient warrant and authority.”

On August 9, 2006, Mr. Shyne filed a notice of candidacy for the seat of Shreveport City Councilman, District F, in the September 2006 primary election. On August 18, 2006, James Edward Green, a candidate for the District F Councilman seat, filed a timely petition seeking to have Mr. Shyne disqualified as a candidate for office. The plaintiff contended that Mr. Shyne was disqualified as a candidate pursuant to La. Const, art. I, § 10(B)(l) because (1) he was convicted of a felony under the laws of the United States, (2) had never been pardoned by the President of the United States, and (3) fifteen years had not elapsed since the completion of his original sentence.

By answer to the suit, Mr. Shyne conceded that he was convicted of a federal felony and that fifteen years had not elapsed since the completion of his original sentence. He nevertheless argued that he was qualified to hold public office under La. Const, art. I, § 10(B)(1) because of the Governor’s pardon.

On August 23, 2006, the trial court rendered judgment in favor of Green, concluding that La. Const, art. I, § 10(B)(1) required a presidential pardon for Mr. Shyne’s federal felony in order for him to qualify to hold public office. This timely appeal followed.

Louisiana Constitutional Law

Three Louisiana Constitutional articles form the focus for resolving the issues before us. Those articles are La. Const, art. I, § 20 (hereinafter referred to as “Art. I, § 20”), La. Const. art. IV, § 5(E)(1) (hereinafter referred to as “Art. IV, § 5(E)(1)”), La. Const. art. I, § 10(B) (hereinafter referred to as “Art. I, § 10(B)” or the “1998 Amendment”).

The pertinent provision of Art. I, § 20, which was included in the Louisiana Constitution of 1974, states:

Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.

The provisions of Art. I, § 10(B), which were added by amendment to the constitution in 1998, state:

The following persons shall not be permitted to qualify as a candidate for elective public office or take public elective office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, 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 a felony and who has exhausted all legal remedies and has not after-wards been pardoned either by the governor of this state or by the officer of the state, nation, government or country having such authority to pardon in the place where the person was convicted and sentenced.
(2) A person actually under an order of imprisonment for conviction of a felony.

Article I, Section 10, Subsection C also added by the 1998 Amendment allows the convicted felon to seek public office “fifteen years after the date of the completion of his original sentence.”

The pertinent provisions of Art. IV, § 5(E)(1), also originally enacted in 1974, state:

The governor may grant reprieves to persons convicted of offenses against the state and, upon favorable recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses.

Also, the provisions of La. R.S. 15:529.1(H) state that 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.”

The starting point in the interpretation of constitutional provisions is the language of the Constitution itself. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-66 (La.7/6/04), 880 So.2d 1. When a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect. Id. Unequivocal constitutional provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. Cajun Elec. Power Co-op. v. Louisiana Pub. Serv. Comm’n, 544 So.2d 362 (La.1989). When the constitutional language is subject to more than one reasonable interpretation, it is necessary to determine the intent of the provision. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, supra. In seeking to ascertain constitutional intent, the same general rules used in interpreting laws and written instruments are followed. East Baton Rouge Parish School Bd. v. Foster, 02-2799 (La.6/6/03), 851 So.2d 985. In construing a constitutional provision, the courts may consider the object sought to be accomplished by its adoption, and the evils sought to be prevented or remedied, in light of the history of the times and the conditions and circumstances under which the provision was framed. Succession of Lauga, 624 So.2d 1156 (La.1993). Additionally, if one constitutional provision addresses the subject in general terms, and another addresses the same subject with more detail, the two provisions should be harmonized if possible, but if there is any conflict, the latter will prevail. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, supra; Perschall v. State, 96-322 (La.7/1/97), 697 So.2d 240. However, where the language of a constitutional prohibition makes its aim evident and unequivocal, courts need not consider the historical basis for the prohibition and may not, by separately considering related constitutional provisions, arrive at a construction that detracts from the effectiveness or manifest meaning or purpose of 'the related provisions. Id.

Discussion

The 1998 Amendment to our Constitution, which added Art. I, § 10(B)(1), disqualifies from holding elective office a person convicted as a felon, resulting from prosecution either in the state or federal systems. It then provides that this disqualification ends if the party has “been pardoned either by the governor of this state or by” the president of the United States. A literal reading of this pardon provision does not require that only the president may pardon a federal felon and free him from Louisiana’s constraint. Likewise, the provision indicates that the governor may pardon a person convicted in the federal system of a crime which would amount to a felony in Louisiana. Our research finds that the federal law allows a gubernatorial pardon of a federal felon to lift a state imposed constraint on the party. Thus, the question presented is solely a matter of our state’s constitutional grant of the power to the governor and whether it allows the governor to remove the Louisiana disqualification from a person convicted of a federal crime.

The trial court’s ruling effectively conceded that the literal wording of the 1998 Amendment allows the governor’s pardon to end. Mr. Shyne’s disqualification from seeking office. Yet, the trial court looked beyond the 1998 Amendment to the general enumeration of the executive’s pardon power in Art. IV, § 5(E)(1), finding that it defined “pardon” in a limited manner which would bar a Louisiana governor’s pardon from restoring Louisiana civil rights to any person convicted of a crime against the United States. The phrase “offenses against the state,” used for the enumeration of the pardon power in Art. IV, § 5(E)(1) was the focus of the trial court’s ruling. Mr. Shyne’s disability for holding public office was viewed as resulting from an offense against the United States. Nevertheless, consideration of the federal consequences of Mr. Shyne’s offense, the jurisprudence, and the history of the general pardon power in our state and nation suggests that the extent of Louisiana’s pardon power specifically authorized by the 1998 Amendment does not hinge on the language relied on by the trial court.

To aid in an analysis of the pardon power, the consequences of a felony offense under both federal and state law should be broken down between the direct criminal punishment for the crime and the collateral civil disabilities imposed for the resulting status of the felon. Only the federal law in this case could punish Mr. Shyne for his conviction with incarceration, fines and related penalties, and no gubernatorial pardon power could change that punishment. In addition to the criminal punishment which Mr. Shyne received, federal regulatory requirements may prevent him from obtaining certain licenses and privileges resulting in collateral federal disabilities for his status as a convicted felon. See, e.g., Hirschberg v. Commodity Futures Trading Comm’n, 414 F.3d 679 (7th Cir.2005) and Thrall v. Wolfe, 503 F.2d 313 (7th Cir.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975) (involving a pardoned state felon’s failed attempt to obtain a federal firearms license).

The collateral consequence of Mr. Shyne’s offense against the United States in this case, however, is a citizenship disability which has nothing to do with a federal statute or regulation. Citizenship rights regarding local elective offices are within the purview of the states. Mr. Shyne’s disability for holding Louisiana elective office does not result from an offense “against the United States,” in the sense that it reflects on a federal policy or interest to restrict his citizenship. Even though Louisiana could not exact corporal punishment for Mr. Shyne’s federal conviction, it is allowed to place him under a citizenship disability to promote the policy of good government for Louisiana. As addressed in this court’s prior ruling involving the 1998 Amendment, the disqualification placed upon Mr. Shyne by the State of Louisiana is not punishment as an ex post facto law because the restriction arose to regulate a present situation in furtherance of state policy. Malone v. Tubbs, supra. Only upon the exercise of a presidential pardon may a state’s denial of rights to federal felons be questioned based upon the Supremacy Clause. Bjerkan v. United States, 529 F.2d 125 (7th Cir.1975). Nevertheless, even a presidential pardon may not remove all collateral consequences for a federal felony conviction which a state might elect to impose. Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914) (state can take into consideration a prior offense committed against the United States after a presidential pardon, as long as the state’s action does not constitute punishment.)

In an election contest involving a candidate with a prior federal conviction, the Louisiana Supreme Court, in dicta, recognized this distinction between the state’s policy interest for setting qualifications for voters or candidates with federal convictions and the federal government’s interest for directly punishing their offenses against the United States. Crothers v. Jones, 239 La. 800, 120 So.2d 248 (1960). The court made the following observation, citing an Alabama ruling:

Our research has revealed no authority which would have made it incumbent upon Jones to secure a pardon from the President of the United States before registering in Louisiana. He had served his sentence and had paid the fine assessed against him. “True only the President could grant a pardon for remission of the fine and release from imprisonment. But no official of the Federal government would have interest in the matter of restoration of civil rights tending to the qualifications of the convicted person for an office under State authority.”

Id. at 120 So.2d 254.

In summary, a state’s denial of the right to hold office does not effect criminal punishment for an offense against the United States, nor is it a collateral consequence limiting citizenship rights in the interest of federal policy. In no sense is Mr. Shyne’s disability a federal response for an offense against the United States. Instead, Art. I, § 10(B) disqualifies felons from elective office because their prior criminal conduct is offensive to Louisiana’s notion of the public trust which is invested in elected officials. Federal law does not prevent Louisiana from placing such disabilities on a federal felon, nor removing them by the exercise of a gubernatorial pardon. The temporary 15-year withdrawal of Mr. Shyne’s citizenship right in this case is therefore solely a product of Louisiana. Nevertheless, the trial court’s ruling holds that the Louisiana executive pardon power may not restore that right. While making that determination, the trial court’s scholarly reasoned opinion properly recognized the lack of a federal interest in this case, stating: “[I]t makes little sense to cede decisions as to the rights Louisiana will afford to Louisiana citizens to the executive branch of the federal government or another state, or even worse, to a potentate of a foreign nation.”

Examination of the pardon power in Louisiana jurisprudence has drawn from an understanding of the pardon power of our federal constitution and common law. According to our Supreme Court, the scope of Louisiana’s pardon power may be gauged by “analysis of the nature and extent of the pardon power of the monarchs of England (the source of the executive pardon power in this country), the proceedings of our federal constitution, the Federalist and other constitutional papers, and the early constitutions of the states of this country, including our own Constitution of 1812.” State v. United Bonding Ins. Co. of Indianapolis, Ind., 244 La. 716, 722, 154 So.2d 374 (1963), see also citations to authorities therein; State v. Lee, 171 La. 744, 132 So. 219 (1931); Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974). The power to pardon is an executive prerogative of mercy. United States v. Noonan, 906 F.2d 952 (3d Cir.1990).

In Louisiana’s previous constitutions, the language “of offenses against the state” was only used in conjunction with the enumeration of the governor’s power to grant reprieves. The governor was otherwise given the power generally to “grant pardons.” See La. Const.1921, art. V, § 10. From this history, it is less than clear that the language regarding offenses against the state in Art. IV, § 5 was intended to be dispositive of the question in this case. The phrase, of course, reflects the governor’s lack of power to alter a federal conviction and sentence by abolishing any part of the corporal punishment or fines imposed by the federal government. Yet, nothing else should be read into that phrase implicitly, when the question shifts from federal punishment of the offense against the United States to the collateral consequences under Louisiana law.

A more difficult question concerns whether a pardon’s purpose is only to end the retribution and punishment against the convicted criminal or whether it may extend broadly to also restore all civil disabilities denied to him by the state. Historically, the “mercy” extended by the king, president or governor was clearly understood to end the punishment. Subsequently, other collateral consequences emerged from legislative acts placing civil disabilities on a felon, not as punishment for crime but to promote policies of protection for the public. This creates the question, which is present under Art. IV, § 5(E)(1): May the pardon power, which has been historically expressed in general terms in our constitutions, be interpreted to restore those rights of citizenship?

In the 1974 Constitution, the pardon power was expressed as follows:

The governor ... upon favorable recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses.

La. Const. art. IV, § 5. This enumeration arguably only addressed the direct criminal consequences of a conviction since it does not contain language expressly lifting collateral civil disabilities which the legislature may choose to place on a felon. For some of those disabilities, a pardon was unnecessary under the original scheme of the 1974 Constitution because the restoration of the “full rights of citizenship” occurred automatically “upon termination of state and federal supervision following conviction of any offense.” La. Const. art. I, § 20. The phrase “full rights of citizenship” addressed by Art. I, § 20, has been interpreted as limited to only the customary rights to vote, work and hold office. State v. Selmon, 343 So.2d 720 (La.1977).

The scope of the pardon power in the 1974 Constitution has never been challenged concerning the pardon’s effect on the restoration of other collateral consequences or disabilities unrelated to the citizenship rights addressed by Art. I, § 20. Yet, because its enumeration of the pardon power is in general terms and does not expressly direct its force for the restoration of all civil disabilities imposed by legislation, such as certain state licensing requirements, the breadth of the pardon power under Art. IV, § 5(E)(1) remains unspecified, subject to future interpretation by the courts. Clearly, the historical and common understanding of pardon, to free the convicted party from sentence and end the sovereign’s retribution, differs greatly from a pardon of the civil disabilities of a felon which the legislature may choose, not as retribution, but in support of important public policy.

From this review, we conclude that Art. IV, § 5(E)(l)’s general expression of the pardon does not prevail over the more specific application of a governor’s pardon which was authorized by the 1998 Amendment. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, supra. The original intent and meaning for Art. IV, § 5(E)(l)’s pardon power did not even address the right to hold elective office because that right was expressly restored elsewhere in the 1974 Constitution on an equal basis for state and federal felons. Thus, it was only when the 1998 Amendment placed its disqualification on felons, that the people simultaneously expressed a specific and independent constitutional pardon power for the governor’s executive discretion.

Turning again to the language of Art. I, § 10(B), the person convicted under the laws of the United States as a felon who “has ... been pardoned either by the governor of this state or by” the President of the United States is no longer disqualified to be a candidate for public office. The literal language makes no distinction requiring a gubernatorial pardon for the felon convicted under state law and a presidential pardon for a federal felon like Mr. Shyne. The Governor of Louisiana is given the power to pardon a party convicted in either jurisdiction. This would not lead to a result in conflict with federal law as we have discussed. With promotion of Louisiana’s policy for trustworthy elected officials being the goal of this disqualification provision, our Governor is entrusted with the power to consider the party’s character and past conduct, and to grant him an earlier time for seeking public office before the expiration of the 15-year disqualification period. This result would promote a fair review of equal measure for both state and federal felons by the party with executive power whose public duty is directly for the oversight of the policy of this state. In this case, Governor Foster, on recommendation of the Board of Pardons, made that determination regarding Mr. Shyne.

On the other hand, the provision’s acknowledgment of the power of the presidential pardon does not cast doubt on the propriety of a governor’s pardon of a federal felon. That acknowledgment principally recognizes that a president may have intervened with a pardon to free the convicted party from federal incarceration. Such pardon under the Supremacy Clause of the United States Constitution may prevent a state from further imposing this sanction on the party. Thus, Art. I, § 10(B)’s acknowledgment of the effect of the presidential pardon for federal crimes also accepts the presidential judgment concerning the individual and avoids any challenge to our citizenship disqualifications under those circumstances involving a presidential pardon.

Conclusion

Our constitutional review begins and ends with the language of the 1998 Amendment itself. When the Amendment placed the public office disqualification upon a Louisiana citizen, it simultaneously gave the governor a pardon power for its removal. Nothing in the federal law prevents a governor from restoring the rights of citizenship which his state’s law has withdrawn from a federally convicted felon. Our Louisiana governor made that choice in this case, and we hold Mr. Shyne is no longer disqualified to seek elective office. Plaintiffs suit is dismissed.

Costs of appeal are assessed to appellee.

REVERSED AND RENDERED.

PEATROSS, J., concurs with written reasons.

DREW, J., dissents with written reasons assigned by J. MOORE and with additional written reasons.

MOORE, J., dissents with written reasons.

LOLLEY, J., dissents for the written reasons assigned by J. MOORE.

MOORE, J.,

dissents with written reasons.

I respectfully dissent. I cannot subscribe to the majority’s strained reading of La. Const. Art. 1, § 10(B), as amended in 1998, to reach the conclusion that Joe Shyne is qualified to run for public office. Although Mr. Shyne has not seriously pressed this argument, I will concede that the section is not a model of artful draftsmanship; the use of “jurisdiction” instead of “place where the person was convicted and sentenced” would have obviated this dispute.

Nonetheless, the majority’s discussion is littered with fallacies. It is a fundamental principle that all constitutional provisions must be read in pari materia. Caddo-Shreveport Sales & Use Tax Comm’n v. Office of Motor Vehicles, 97-2233 (La.4/14/98), 710 So.2d 776; Chehardy v. Democratic Executive Comm., 259 La. 45, 249 So.2d 196 (1971). Article 4, § 5(E)(1) does not give the governor of Louisiana any authority to pardon federal offenses; it limits the governor’s pardon power to “offenses against the state.” When the voters approved the 1998 amendment to Art. 1, § 10, they added Subsection (B), “Disqualification.” Any fair reading of the amendment would show an intent to limit, not to expand, the governor’s pardon power. Nowhere does Art. 1, § 10(B) give the governor the right to grant full restoration of citizenship rights. The majority gives the governor boundless pardon power. Moreover, the United States constitution grants the president of the United States the power to “grant Reprieves and Pardons for Offenses against the United States.” Act. II, § 2. On the basis of supremacy, neither the state constitution nor this court can derogate from the president’s authority.

The majority’s opinion also makes factual or legal assertions that are dubious at best. For example, the majority states that the “trial court’s ruling effectively conceded that the literal wording of the 1998 Amendment allows the governor’s pardon to end Mr. Shyne’s disqualification from office.” Absolutely nothing in the district court’s opinion states this, by implication, concession, or any other way. Then, in the effort to downplay Art. 4, § 5(E)(1), the majority states that governor’s pardon power “was expressly restored elsewhere in the 1974 Constitution equally for state and federal felons.” (Emphasis in original.) There is no such express restoration anywhere in the constitution.

Beyond these particular faults, the majority’s opinion follows the general contours of La. Atty. Gen. Op. 79-787 (3/13/80), which had advised that the denial of civil rights because of a felony conviction was a creation of Louisiana law, ergo those rights could be reinstated by Louisiana law regardless of whether the convicting jurisdiction had pardoned the offender. The district court, however, demolished this argument:

While not cited by Mr. Shyne’s counsel, the Court’s research reveals a series of older opinions in which the Louisiana Attorney General opines that the governor enjoys the authority to pardon federal offenses. Principal among these opinions is Opinion No. 79-787 issued by the Attorney General on March 13, 1980. The Attorney General analyzed the issue of the authority of the governor to pardon federal offenses by first noting that there was no significant difference in the pardon powers under the 1921 Louisiana Constitution and the 1974 Constitution and that “as a matter of custom and practice of longstanding in Louisiana, the governor has granted pardons to federal offenders, not pardoning the crime but removing the civil disabilities arising under Louisiana Law because of the crime.” The Attorney General stated that there was no Louisiana jurisprudence on point, and relied upon general authority from other states. Those authorities apparently acknowledge that the chief executive of a state cannot fully pardon a federal offense, but assert that the executive can “grant executive clemency, effectively restoring rights of citizenship in the state to one who has been disqualified for public office or has lost other civil rights, such as a right to vote, to act as juror, to testify as a witness, etc., as a result of a conviction of crime in a federal court or in the courts of another state for which no pardon has been granted.” The Attorney General continued that “It stands to reason that if Louisiana may legally withdraw certain Louisiana rights or privileges because of a person being convicted of a felony under the laws of a foreign government, another state or under federal statute, that the chief executive of Louisiana has the legal power and authority to reinstate those state rights or privileges by the granting of a pardon.” The Attorney General noted that in the previous fifteen years (prior to 1980), at least eighty-seven pardons had been granted by Louisiana governors on federal offenses and concluded that:
We believe the time-honored practice under the former constitution and the new constitution has resulted in a contemporaneous construction of the meaning of “offenses against the state” to include federal and extraterritorial convictions.
In other words, prior governors have construed the provisions of the Louisiana Constitutions to the effect that convictions in federal and extraterritorial forums have resulted in offenses against the state even though the conviction is not for a violation of Louisiana law. This construction is logical inasmuch as Louisiana has inflicted punishment for such offenses by the withdrawal of certain Louisiana rights and privileges. * * *
In conclusion, when an individual commits a federal or foreign felony, certain Louisiana state rights and privileges are forfeited. It is within the power of the Governor of Louisiana to grant pardons for federal and foreign felonies, however, the effect of such pardons is only to mitigate any Louisiana collateral consequences.
The Attorney General acknowledged the Louisiana Supreme Court decision in Baxter, but chose to disregard it, stating that it was “dictum” when the court stated that only the President could pardon a federal offense, as there was no pardon issued at all in that case. See also La. Atty. Gen. Ops. 80-257 and 83-558. The court notes that the 2002 Attorney General opinion addressed to Senator Malone, which renders an opinion that differs from the prior opinions, does not mention, distinguish, withdraw or overrule any of the prior Attorney General opinions were issued long before the voters amended the Louisiana Constitution in 1998.

Later, the district court criticized “inconsistent Attorney General opinions” that “create problems that eventually wind up in court.” The same critique could be applied to the majority’s adoption of substantially the same discredited theory.

I would affirm the judgment and the sound rationale of the district court.

DREW, J.,

dissenting for the reasons assigned by Judge Moore, and with additional reasons.

The trial court’s opinion and my brother judge’s dissent express the law admirably, and I fully adopt their reasoning, asking leave to express these further comments.

The majority opinion is admittedly erudite, yet seems to be straining at gnats (actually, mosquitoes in Louisiana) to reach this result. The only authorities not cited were Plato, Planiol, Socrates, and Will Rogers. The majority opinion “out-lawyers” itself into misapplying the will of the people, as expressed by the law of Louisiana. Reasonable people can have differences of opinion, but it seems the majority has over-complicated this dispute.

My personal philosophy is that if the people want to elect Donald Duck, they should be allowed to do so. The problem here is that my personal philosophy is in conflict with the law as I read it. Under the facts of this case, Mr. Shyne is clearly precluded from running for office until he secures a presidential (federal) pardon for this federal crime, or until the 15 years expire.

I respectfully dissent.

PEATROSS, J.,

concurs.

I agree with the majority that a literal reading of Article I, Section 10(B)(1) allows either the President of the United States or the Governor of Louisiana to grant a pardon ending the disqualification affecting a person convicted of a federal crime in Louisiana that also would be a felony under Louisiana state law. I concur to add alternative reasons for concluding that Article IV, Section 5(E)(1) does not limit the governor’s power to pardon in this case.

Our Supreme Court has indicated in State v. Adams, 355 So.2d 917 (La.1978) and in State v. Lee, 171 La. 744, 132 So. 219 (1931), that a full pardon by the governor restores the “original status” of the pardoned individual, i.e. a “status of innocence” of crime. There can be little doubt that such a “gold seal” pardon restores all rights of citizenship because, logically, an individual restored to a “status of innocence” must have all rights of citizenship. Furthermore, logic also dictates that, if the constitution gives the governor such broad power to pardon, the governor can exercise that power to restore any subset of the rights restored by a full pardon.

Article IV, Section 5(E)(1), however, arguably restricts the broad pardoning power to “those convicted of offenses against the state.” For the following reasons, I do not read this language as restricting the governor’s broad pardoning power to pardoning only convictions under Louisiana state law, but read this language as authorizing the governor to pardon any offenses against the state, including a crime under the law of the United States that would be a felony in Louisiana. I agree with the statement in footnote 4 of the majority opinion that, when a Louisiana official commits an act of public bribery in this state, Louisiana has suffered the offense regardless of the fact that the official is convicted under federal law. Thus, I conclude that Article IV, Section 5(E)(1) allowed the governor in this case to remove Joe Shyne’s disqualification to seek elective office.

The trial court read these provisions narrowly as a restriction on the governor’s power to restore civil rights to Louisiana citizens who had such rights taken away by Louisiana law because of a conviction in Louisiana of a federal crime that also was a felony under Louisiana state law. Aside from the fact, recognized by the trial court, that restricting such power to the executive branch of the federal government “makes little sense,” this narrow reading goes against the principle that laws in derogation of common law or common right should be strictly interpreted. Monteville v. Terrebonne Parish Consolidated Government, 567 So.2d 1097 (La.1990). The right to seek elective office is such a right; thus, the governor’s power to restore the right should be read broadly. For the same reason the disqualification added by the 1998 amendment to Article I, Section 10 should be read narrowly.

Furthermore, even if “offenses against the state” were read narrowly to include only convictions under Louisiana state law, it is doubtful that such a reading would limit the governor’s pardoning power in this case. Such a narrow reading would simply make Article IV, Section 5 inapplicable; it would neither permit, nor prohibit the pardon given in this case. Therefore, if another source of law gave such power, the pardon would be effective. Article IV, Section 5(K) makes clear that the powers mentioned in Section 5 should not be read as restricting executive power; instead, the governor shall have other powers “authorized by this constitution or provided by law.” A good argument can be made that another source of law gives the governor the power exercised herein.

La. C.C. art. 1 states that the sources of law are legislation and custom. La. C.C. art. 3 states that custom results from practice “repeated for a long time and generally accepted as having the force of law.” Custom may not abrogate legislation, but if, arguendo, no legislative prohibition exists that addresses the pardon given herein, the governor could acquire that power through customary practice accepted as being valid.

The requirement of a practice repeated for a long time arguably is shown in Attorney General Opinion 79-787 indicating that the governor has granted pardons to federal offenders “as a matter of custom and practice of longstanding in Louisiana,” and indicating that in the 15 years prior to that opinion, at least 87 pardons were granted by Louisiana governors for federal offenses. Obviously, the governor, the Board of Pardons, the pardoned offender, and the attorney general’s office all understood these pardons to be effective in restoring civil rights; thus, the second requirement of La. C.C. art. 3 also arguably is met. I note that this understanding is in line with the majority opinion’s quote from Am. Jur.2d.

For the foregoing reasons, I respectfully concur in the reversal.

      . See, Malone v. Tubbs, 36,816 (La.App.2d Cir.9/6/02), 825 So.2d 585, writs denied, 02-2322 (La.9/11/02), 824 So.2d 1164, 02-2448 (La.10/1/02), 826 So.2d 1110.

      . An original plaintiff in this case, Max T. Malone, was dismissed from the action, and Mr. Shyne's opponent in the upcoming election, James Edward Green, is the appellee.

      . This understanding is seen in other state interpretations of the gubernatorial pardon power for the restoration of state citizenship rights to federally convicted felons. As described in 59 Am.Jur.2d Pardon and Parole § 24:
      The chief executive of a state has no power to grant a pardon for an offense against the United States for which a conviction has been had in the federal court, in the sense of taking away any part of the corporal punishment inflicted upon the offender. However, in the exercise of the pardoning power, the chief executive of a state may grant executive clemency, effectively restoring rights of citizenship in the state to one who has been disqualified for public office or has lost other civil rights, such as a right to vote, to act as juror, to testify as a witness, and so forth, as a result of a conviction of crime in a federal court or in the courts of another state for which no pardon has been granted. This remains applicable to allow a state official to restore citizenship notwithstanding that the person in question has not been pardoned or restored to the rights of citizenship by the President of the United States. (Citations omitted.)

      . Significantly, when a Louisiana official commits an act of public bribery in this state, that crime is proscribed under our criminal statute (La. R.S. 14:118) and regardless of the fact that the official is convicted under federal law, the State of Louisiana has suffered the offense.

      . See, e.g., various Louisiana licensing statutes restricting felons, including La. R.S. 4:150 (horse owners, trainers, jockeys and riders); La. R.S. 37:921 (registered nurses); La. R.S. 37:1437 (real estate sales); La. R.S. 37:2950 (professions and occupations); La. R.S. 37:3219 (radiologic technologists); La. R.S. 37:3396 (real estate appraisers); La. R.S. 37:3469 (wholesale drug distribution); La. R.S. 40:1235.2 (ambulance providers); La. R.S. 47:818.41 (gasoline and diesel fuel); La. R.S. 47:7005 (gaming equipment); and former La. R.S. 27:76 (gaming).

      . We note that certain federal cases have dealt with this question regarding the presidential pardon. The pardon has been held to apply to alleviate punishment for contempt of court. Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527 (1925). It does not extend to require the expungement of criminal records. United States v. Noonan, supra. Likewise, a presidential pardon has been construed as not preventing the fact of the conviction from being used in consideration of federal regulatory licenses. Hirschberg v. Commodity Futures Trading Comm’n, supra. In Bjerkan v. United States, supra., the court cited Burdick v. United States, 236 U.S. 79, 35 S.Ct. 267, 59 L.Ed. 476 (1915), for its conclusion that "[a] pardon does not 'blot out guilt' nor does it restore the offender to a state of innocence in the eye of the law....”

      . State v. Baxter, 357 So.2d 271 (La.1978).


author: PAINTER, Judge. PICKETT, Judge,

text:
    Robert WEINGARTNER v. LOUISIANA ICE GATORS.
    No. 05-1211.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Rehearing Granted Aug. 23, 2006.
    John J. Rabalais, Janice B. Unland, Robert T. Lorio, Thomas B. Delsa, Coving-ton, LA, Attorney for Plaintiff-Appellant: Louisiana Ice Gators.
    Robert L. Hackett, Atlanta, GA, Attorney for Defendant-Appellee: Robert Weingartner.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

11AppeIlant, the Louisiana Ice Gators (“the Team”), a professional hockey team, appeals the ruling of the Office of Workers’ Compensation awarding temporary total disability (“TTD”) benefits and supplemental earnings benefits (“SEB”) to Robert Weingartner. Weingartner answers the appeal asking for benefits for an increased period, an increased benefit for scarring, and penalties and attorney’s fees.

The Workers’ Compensation judge (“WCJ”) correctly outlined the underlying facts of this case, in her reasons for judgment, as follows:

Robert Weingartner was employed with the Louisiana Ice Gators (“Ice Gators”) as a professional hockey player. On May 9, 2000 while playing in a game, the puck went behind the net. Wein-gartner went behind the net and an opponent put his hockey stick between Weingartner’s legs and pushed him into the ledge. Weingartner was sent for medical treatment immediately after the game to have a cut over his left eye stitched up. The team doctor referred him to a neurologist. He was seen by Dr. Patrick Juneau III, a neurosurgeon, on May 10. Due to Weingartner’s long history of concussions, Dr. Juneau believed him to be at increased risk for concussive episodes and advised Wein-gartner to retire.
Weingartner retired from professional hockey upon Dr. Juneau’s advice. After his retirement he did various jobs. He coached children’s league ice hockey and roller hockey, he operated a small lawn care business, and managed a condominium complex. He and his family eventually moved to Witchita (sic), Kansas where he obtained employment with Goddard Middle School as a custodian.

Weingartner filed a disputed claim for compensation on September 7, 2001. After a hearing, the WCJ rendered judgment in favor of Weingartner granting temporary total disability benefits in the amount of $384.00 per week from May 9, 2000 through December 1, 2000 and supplemental earnings benefits beginning December 2, 2000 and to continue as long as they are due. She also awarded twenty weeks of benefits for scarring and disfigurement at

$384.00 per week. She ordered that the TTD benefits. and SEB be subject to a credit for sums paid in lieu of | ^compensation, including fringe benefits, from May 10, 2000 through October 12, 2000, a credit for the twenty weeks awarded for scarring and disfigurement, and a credit for income earned after May 9, 2000, less actual business expenses of self-employment as evidenced by the income tax returns. The judgment further noted that Weingartner is entitled to any medical treatment for his post-concussive syndrome that is reasonable and necessary. Both Weingartner and the Team assert error on the part of the WCJ.

DISCUSSION

Prescription

The Team asserts that the claim for indemnity benefits is prescribed because the payments made to Weingartner through October 12, 2000 were earned under his contract rather than being wages in lieu of compensation, which would have served to interrupt or suspend prescription. La.R.S. 23:1209(A) (footnote omitted) provides, in pertinent part, that:

In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any ease, the limitation shall not take effect until the expiration of one year from the time of making the last payment ...

It is uncontested that Weingartner was injured on May 9, 2000. Weingartner’s testimony shows that the Ice Gators’ final game of that hockey season was to occur on May 26, 2000. It is undisputed that Weingartner continued to receive his salary 1-jfrom the time of his injury through October 12, 2000. The trial court found that those payments were wages in lieu of compensation.

La. R.S. 23:1209(A) in part, provides that claims for workers’ compensation are forever barred unless a claim is filed within one year after the accident, or the parties have agreed upon the payments to be made. Voluntary payments, or “unearned wages,” paid by the employer to the employee can be deducted from compensation payments. La.R.S. 23:1206. These payments are considered “wages in lieu of compensation.” Jerich v. New Orleans Saints, 00-1299, p. 4 (La.App. 5th Cir.12/27/00), 776 So.2d 1283. Prescription is interrupted when wages in lieu of compensation have been paid. If wages are paid in lieu of compensation, a claim for compensation benefits must be filed within one year of such payment. Blanchard v. Tulane Medical Center, 97-1111, p. 3 (La.App. 5th Cir.3/11/98), 708 So.2d 1232, 1233; Siemssen v. Manpower Temporary Services, 95-80, p. 6 (La.App. 5th Cir.5/30/95), 656 So.2d 1115, 1117.

Frazier v. Deltide Fishing & Rental Tool, Inc., 03-53, pp. 4-5 (La.App. 5 Cir. 5/28/03), 848 So.2d 143, 146.

The Team asserts that the payments were earned under the contract but paid in prorated fashion, as agreed by Wein-gartner at the time he signed his contract with the Team, over a twelve month period. The contract was not introduced into evidence. Weingartner supplied the only testimony concerning the terms of his employment under the contract. Weingart-ner’s testimony with regard to his contract was as follows:

When I arrived in town, I had a meeting with the general manager [of the Ice Gators]. His name is J.D. Regard. I sat down at his desk. He — we talked about a contract, and he offered me Four Hundred and — I believe it was Four Hundred and Fifty Dollars a week. And I told him, I said, you know — I said, “Wait a second. I was just playing for an Eight Hundred Dollar a week contract. There’s no way that I’m going to play, you know, in my eighth year professional, I’m going to take that much of a pay cut.” So he — I told him I had— you know, I explained my whole contract, which I said earlier, about the Eight Hundred Dollars a week and all the extra things I was getting, so he went ahead and said, “Okay, we’ll put you at — “I believe it was Four Fifty or Four Sixty-Five for a year-round contract, so I would get paid, basically, double the time that I had been there in order to make up for the difference in pay. There |4was a salary cap at the time, and they had a lot of older players, what we call veteran players, which are — who have played two hundred games or more — so he didn’t have the Eight Hundred Dollars a week. So he agreed to pay me the Four Sixty-Five for double [the] amount of time, or a year-round contract which would’ve ended in October. October 12th. Around there.

Considering this testimony, we find that the money paid to Weingartner after the end of the season was earned during the season. Therefore, the payments cannot be considered wages in lieu of compensation. As a result, prescription was not interrupted by these payments, and Wein-gartner’s claim for indemnity benefits is prescribed.

Having so found, we need not consider the remaining assignments of error. Although Weingartner’s brief on appeal suggests that he may be asking for penalties and attorney’s fees for failure to pay for dental care claimed pursuant to an earlier compensation claim filed under Office of Workers’ Compensation docket number 03-1966, the judgment appealed from does not pertain to that claim. Therefore, the claims raised therein are not before this court.

CONCLUSION

For these reasons, the judgment of the trial court concerning indemnity benefits is reversed. Weingartner’s claim for workers’ compensation indemnity benefits arising out of his accident of May 9, 2000 is dismissed. That portion of the judgment concerning medical treatment is affirmed. Costs of this appeal are to be paid by the Appellee, Robert Weingartner.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

PICKETT, J. dissents and assigns written reasons.

THIBODEAUX, Chief Judge, dissents for the reasons assigned by Judge PICKETT.

PICKETT, Judge,

dissenting.

pFor the following reasons, I disagree with the majority opinion.

The majority finds that the money paid Mr. Weingartner between the time he was injured and the end of his contract, October 12, 2000, did not interrupted the tolling of prescription. I disagree. This case is very similar to the factual situation in Jerich v. New Orleans Saints, 00-1299 (La. App. 5th Cir.12/27/00), 776 So.2d 1283. In Jerich, the claimant was a professional football player employed by the New Orleans Saints.- Jerich injured his knee in June of 1997. During the 1997 football season, Jerich was paid his entire basic contract amount but performed no services as a professional football player. In Je-rich the court stated:

The running of prescription is suspended where the employer is paying the injured worker wages in lieu of compensation. Causby v. Perque Floor Covering, 97-1235 (La.1/21/98), 707 So.2d 23, 28 n. 4; Blanchard v. Tulane Medical Center, 97-1111 (La.App. 5 Cir. 3/11/98), 708 So.2d 1232, 1233.
The OWC judge made the following findings of fact in her reasons for judgment:
The testimony and the evidence corroborate that the claimant’s last payment of benefits was in 1998, pursuant to the grievance settlement. The claimant did not work in 1998. The claimant did not perform duties as a professional football player while receiving his salary. He had multiple ' surgeries on his knee and he failed the team physical in 1998, so he could not play. He was paid | ¡>($55,500.00) in the settlement. The claimant therein did not earn his salary, he was paid pursuant to the contractual agreement. Therefore, he was paid wages in lieu of compensation.
Thus, the court held that the filing of the claim in June 1998 had not prescribed because it was within one year of the payment of the settlement.
The parties stipulated that plaintiff received payment of his contract for the 1997 season. The OWC judge determined that payment was wages in lieu of compensation and, therefore, held that it interrupted prescription on the claim. On appeal defendants assert that, although plaintiff did not play during either the 1997 season and or the 1998 season, the payment of the contract amount to plaintiff was earned wages.

Id. at 1285-86 (emphasis mine). In this case, Mr. Weingartner received payment of his contract between the time he was injured and the end of the contract period, October 12, 2000. The facts establish that Mr. Weingartner was paid his entire contract amount, yet he performed no services as a professional hockey player after his injury. Just as Jerich. Additionally, had Mr. Weingartner filed for indemnity benefits immediately after his accident he would have lost money. I believe that the court must look at the intent of the Workers’ Compensation Statutes, the liberal rule of construction which must be accorded the Workers’ Compensation Statutes, and also take into consideration the unique character of employment of professional athletes (contracts, non-monetary compensation, etc.) as did our colleagues of the fifth circuit in Jerich.

Additionally, this court has recognized that an employer cannot continue to pay an employee his regular salary and then, subsequently, use that practice to avoid its responsibility under the Workers’ Compensation Statutes. See Monceaux v. R & R Construction, Inc., 05-533 (La.App. 3 Cir. 12/30/05), 919 So.2d 795.

Further, it is well settled “that an employer and/or insurer who lulls the injured employee into a false sense of security, thus inducing forbearance in the prosecu-tionjjof a compensation claim is estopped to plead prescription to the injured employee’s untimely suit.” Williams v. William Wrigley, Jr., Co., 94-370 (La.App. 5 Cir. 11/16/94), 646 So.2d 1092, writ denied, 95-0373 (La.4/7/95), 652 So.2d 1346. If the payment of one’s full salary, following an injury doesn’t qualify as lulling an injured employee into a false sense of security, what does?

According, for the reasons stated above, I respectfully dissent.

      . We note that the Team has not assigned error with regard to the medical treatment ordered in the judgment. Therefore, that portion of the judgment is not before this court.


author: BROWN, Chief Judge. PER CURIAM.

text:
    STATE of Louisiana, Appellee v. Tommy Louis DAVIS, Appellant.
    No. 41,245-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 9, 2006.
    Opinion Denying Rehearing Sept. 21, 2006.

      W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART, and GASKINS, JJ.
   BROWN, Chief Judge.

11 Defendant, Tommy Louis Davis, was convicted of the attempted second degree murder of his ex-girlfriend, Victoria Moore. Thereafter, he was adjudicated a second felony offender and sentenced to 40 years at hard labor without benefit of probation, parole, or suspension of sentence. Defendant’s conviction is affirmed; however, the habitual offender adjudication and sentence are vacated, and the matter is remanded for further proceedings.

Discussion

Sufficiency of the Evidence

Defendant first asserts that the state failed to prove beyond a reasonable doubt that he had the specific intent to kill Victoria Moore when he stabbed her. He notes the emergency room physician’s testimony that had defendant “actively desired to kill the victim, i.e., possessed specific intent, he could have chosen different locations on the body, such as the throat, to ensure the victim died.”

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

[2This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to the trier of fact’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra; State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (La.1987).

To sustain a conviction for attempted second degree murder, the state must prove that defendant intended to kill the victim and committed an overt act tending toward the accomplishment of the victim’s death. State v. Bishop, 01-2548 (La.01/14/03), 835 So.2d 434.

Specific intent is a state of mind which necessarily must be inferred from the 'circumstances and in particular from the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Taylor, 621 So.2d 141 (La.App. 2d Cir. 1993), writ denied, 93-2054 (La.02/11/94), 634 So.2d 371. "

The victim, Victoria Moore, testified that defendant, a former boyfriend with whom she had a child, came to her grandmother’s house after midnight on April 28, 2004. He came into the bedroom where she and her sister were putting their children to bed. Defendant told her to come with him and she refused. Victoria handed her baby to her cousin, Sinclair 1 sMoore, who had followed defendant into the room. Defendant then grabbed Victoria and pulled her out of the house. She tried to run from him and he pulled her clothing, ripping both her shirt and jacket off. Victoria was able to get away and back into the house. She ran into the bathroom, but defendant followed her and closed the door behind him.

Victoria testified that defendant began stabbing her with a long black-handled knife. Defendant told her she was going to die because he was tired of what she was doing to him. The victim’s 75-year-old grandmother, who was in a wheelchair, was able to force the bathroom door open and the victim ran out of the room. Defendant followed Victoria into the living room and began stabbing her again. Victoria testified that defendant stabbed her about nine times on her arm, chest, sides, and back. Victoria further stated that she was hospitalized as a result of her wounds and that while she was in the hospital defendant called her and told her that if she talked to the police he would come back to finish what he had started. After that telephone call, the hospital put security guards at her door.

The victim’s testimony was corroborated by her sister, Andrea Moore, her grandmother, Martha Etier, and her cousin, Sinclair Moore.

The attending physician, Dr. Robert Kerry, testified that Victoria Moore had stab wounds primarily in her chest and “had a collapsed lung on one side that was particularly dangerous.” Dr. Kerry testified that Victoria had to undergo surgery for the collapsed lung and remained in the hospital for a week. Dr. Kerry stated that Victoria’s injuries were serious and potentially life-threatening in nature.

^Defendant’s argument that Dr. Kerry’s testimony supports the assertion that there was no intent to kill is not supported by the record. Dr. Kerry’s testimony regarding the stab wounds does not negate a finding of specific intent to kill. The following colloquy took place between defendant’s trial attorney and Dr. Kerry:

Q: If your intent was to kill a person with a knife, are there other places such as the neck or throat that you might stab or slash someone that would be more efficient than killing (sic) them than where this particular lady was stabbed?
A: Ah, again, I’m not of the criminal mind. But, if you want to have a more rapid effect I’m sure if you got a person’s airway or stabbed their spinal cord or maybe a blood vessel either in the neck or in the chest, the result would have been more rapid.

The specific intent of defendant to kill Victoria is overwhelmingly supported by the testimony. But for the efforts of this victim’s grandmother and the emergency treatment she received, defendant may have been facing a charge of second degree murder rather than the attempt charge.

Habitual Offender Adjudication

Defendant’s second assignment of error is that his adjudication as a habitual offender was invalid. He claims that the state did not prove that at a previous guilty plea in 1983 he was advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Additionally, he asserts that the state failed to prove the date that he was actually discharged from custody and supervision on the 1983 rape conviction in Texas and therefore, the state failed to prove that the instant offense occurred within the ten-year “cleansing period.”

| ^Louisiana Revised Statute 15:529.1(C) provides:

The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions or adjudication or adjudications of delinquency alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals 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 between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

Validity of Guilty Plea

The record shows that defendant’s trial attorney did not file an opposition to the multiple offender bill. At the hearing, the only argument made in opposition was to the computer fingerprinting and the calculation of the “cleansing period” for the prior offense. Thus, the issue of the validity of the plea is not properly before this court since a new basis for an objection cannot be raised for the first time on appeal. La. C. Cr. P. art. 841; State v. Cressy, 440 So.2d 141 (La.1983); State v. O’Neal, 501 So.2d 920 (La.App. 2d Cir. 1987), writ denied, 505 So.2d 1139 (La.1987).

| fProof of Discharge Date

In connection with the 1983 rape conviction, the record shows that defendant was sentenced to serve ten years, but that his sentence was suspended and he was placed on probation. On April 25, 1985, defendant’s probation was revoked, and he was- ordered to serve his sentence; however, the April 25, 1985, ruling revoking defendant’s probation shows that defendant was to be given credit for time already served. The record in this matter has absolutely no evidence to show defendant’s actual discharge date for the prior offense. Because the present crime was committed April 28, 2004, defendant’s'discharge date is critical in determining the “cleansing period.”

In State v. Boykin, 29, 141 (La. App. 2d Cir.01/31/97), 688 So.2d 1250, 1257-1258, reh’g denied, appeal after new sentencing hearing, 34,133 .(La.App. 2d Cir.12/06/00), 774 So.2d 1074, appeal after new sentencing hearing, 36,989 (La.App. 2d Cir.03/05/03), 840 So.2d 64, writ denied, 03-1158 (La.11/14/03), 858 So.2d 416, this court observed:

This “cleansing period” begins to run from the date that a defendant is actually discharged from state custody' and supervision. State v. Anderson, 349 So.2d 311 (La.1977); State v. Metoyer, 612 So.2d 755 (La.App. 5th Cir.1992). The state has thé burden of proving the date of defendant’s discharge from state supervision. See State v. Lorio, 94-2591 (La.App. 4th Cir.09/28/95), 662 So.2d 128. Where a defendant has been adjudicated a habitual offender, the state’s failure to prove the defendant’s date of discharge and thus prove that the “cleansing period” has not expired is error patent on the face of the record. See State v. Bullock, 311 So.2d 242 (La.1975); see also State v. Baker, 452 So.2d 737 (La.App. 1st Cir.1984).
There is no evidence in the record before us showing the defendant’s release date from state supervision for his sim-pie robbery conviction. At the habitual offender hearing, the state did not provide any documentation of defendant’s discharge, but merely stated the date of 17defendant’s prior conviction and stated that the “cleansing period” commenced one year from the date of conviction. Since there is no evidence in the record of defendant’s discharge from prison for his prior felony conviction, the habitual offender adjudication and sentence is vacated arid the case remanded for further proceedings.

For this reason, defendant’s habitual offender adjudication and sentence must be vacated; however, the case is remanded for further proceedings to determine defendant’s status as a habitual offender and for resentencing.

Conclusion

For the reasons set forth above, defendant’s conviction is AFFIRMED. Defendant’s habitual offender adjudication and sentence are VACATED and the matter is REMANDED for further proceedings.

ON REHEARING

Before BROWN, STEWART, GASKINS, CARAWAY, and MOORE, JJ.

PER CURIAM.

|, We deny the State’s application for rehearing. We note that this court’s opinion remanded for the State to show defendant’s actual discharge date. We direct the parties to the Texas DOC pen-pack and PSI. Both indicate that defendant’s ease was transferred to Louisiana, and the “subject expired on 04/29/1997.”

      . Although a showing of specific intent to commit great bodily harm is sufficient to support a conviction for second degree murder, to support a conviction of attempted second degree murder, however, the state must show specific intent to kill. See State v. Bishop, supra.

      . Under the holding of State v. Shelton, 621 So.2d 769 (La.1993), the state's initial burden was to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. Once the state did this, it was defendant's burden to produce affirmative evidence showing an infringement of defendant's rights or a procedural irregularity in the taking of the pleas. This record reflects that defendant's attorney made no showing that there was any defect in the guilty plea proceeding.
      Under the holding in State v. O’Neal, 34,814 (La.App. 2d Cir. 10/12/01), 795 So.2d 1292, appeal after new sentencing hearing, 36,431 (La.App. 2d Cir. 10/23/02), 830 So.2d 408, writ denied, 01-3207 (La. 11/01/02), 828 So.2d 564, and the rationale set forth in State v. Shelton, supra, this record shows that the state carried its burden regarding the validity of the plea.


author: GRAVES, Justice,

text:
    Aaron B. BENNETT v. Rebecca McCAFFREY.
    No. 2005-IA-00277-SCT.
    Supreme Court of Mississippi.
    June 29, 2006.
    As Modified on Denial of Rehearing Sept. 14, 2006.

      H. Wesley Williams, III, attorney for appellant.
    Rebecca G. Taylor, Jackson, attorney for appellee.
    Before COBB, P.J., CARLSON and GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. This interlocutory appeal arises from a four-vehicle accident which occurred on January 8, 2000, in Hancock County, Mississippi. Aaron B. Bennett (Bennett) filed a Motion to Dismiss the complaint of Rebecca McCaffrey (McCaf-frey) because McCaffrey allegedly failed to show good cause as to why process was not served in a timely manner. Bennett further alleged that McCaffrey did not demonstrate excusable neglect to allow for additional time to serve process.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 8, 2000, a four vehicle automobile accident occurred on Highway 603 in Hancock County, Mississippi. The first two cars were driven by Daniel E. Tucker (Tucker) and Walter F. Madeley (Madeley). Soon after Tucker and Made-ley had collided, Bennett came upon the scene and ran into the two already wrecked vehicles. Thereafter, McCaffrey came upon the scene and also collided with the other three vehicles in the highway.

¶ 3. On January 7, 2003, McCaffrey filed her complaint against Bennet, Tucker, Madeley, Phelps , and her insurance company, USF & G. On the same day, summonses were issued by the Hinds County Circuit Clerk. On March 11, 2003, a Hancock County Sheriffs Officer attempted to serve Bennett and learned that Bennett had moved or the address was incorrect. McCaffrey was only able to serve USF & G, her own insurance company, within the original 120 day time period. On April 29, 2003, pursuant to a motion filed by McCaffrey, the circuit court granted a 60 day extension for service of process. On June 24, 2003, McCaffrey issued a subpoena on the Commissioner of Insurance in an effort to serve Bennett’s insurer to obtain information on his whereabouts. On June 25, 2003, the Commissioner of Insurance forwarded the subpoena to Bennett’s insurer. On June 30, 2003, McCaffrey attempted to serve Bennett by publication. On July 6, 2003, the first extension granted by the circuit court expired.

¶ 4. On October 6, 2003, pursuant to a motion filed by McCaffrey, the circuit court granted an additional extension of time to serve Bennett. On October 22, 2003, Bennett was personally served. On November 6, 2003, Bennett filed a Motion to Dismiss with the Hinds County Circuit Court, pursuant to the Mississippi Rules of Civil Procedure 4(h), 12(b)(4), 12(b)(5), and 12(b)(6). On December 5, 2003, the second extension of time expired. On January 27, 2004, McCaffrey filed her response to Bennett’s Motion to Dismiss. On February 4, 2004, Bennett filed his reply in support of his Motion to Dismiss. The parties presented oral arguments on the Motion on February 19, 2004. On June 7, 2004, the circuit court denied Bennett’s Motion to Dismiss. On January 24, 2005, Bennett filed his Petition for Certification for Interlocutory Appeal with the circuit court. The same day, the circuit court judge signed and entered an Amended Order Denying Defendant’s Motion to Dismiss and Plaintiffs Motion for Default and Denying Certification for Interlocutory Appeal. On February 7, 2005, Bennett filed his Petition for Interlocutory Appeal with this Court. On March 9, 2005, this Court granted Bennett’s Petition for Interlocutory Appeal. However, McCaffrey argues that Bennett is not entitled to an interlocutory appeal because Bennett failed to seek timely certification for his interlocutory appeal from the circuit court. Furthermore, on interlocutory appeal, Bennett this court with two issues:

I. Did the Circuit Court err in denying defendant’s motion to dismiss because the plaintiff failed to show good cause as to why process was not served within the time allowed by Rule 4(h) and the extensions granted by the Circuit Court?
II. Did the Circuit Court err in denying the defendant’s motion to dismiss because the plaintiff did not demonstrate excusable neglect to allow for additional time to serve process, where said request on October 6, 2003 was made ninety-two (92) days after the expiration of the first time extension?

DISCUSSION

Whether Bennett fail to seek timely certification for his interlocutory appeal from the circuit court.

¶ 5. McCaffrey makes the argument that Bennett failed to timely seek certification for his interlocutory appeal from the circuit court. Specifically, McCaffrey states that the circuit court entered an order denying Bennett’s Motion to Dismiss on June 7, 2004. McCaffrey further argues, it was not until January'24, 2005, that Bennett filed his Petition for Certification for Interlocutory Appeal with the circuit court seeking to appeal the circuit court’s June 7, 2004 ruling. McCaf-frey’s position is that Bennett had fourteen days from the circuit court’s denial of his Motion to Dismiss in which to file his petition for certification with the circuit court and he did not do so. Bennett correctly argues that because the Amended Order Denying Defendant’s Motion to Dismiss and Plaintiffs Motion for Default and Denying Certification for Interlocutory Appeal was filed on January 24, 2005, and he filed his Petition for Interlocutory Appeal on February 7, 2005, exactly 14 days later, his petition to this Court is timely. The overall contention between the parties concerns the identification of the particular “order” referred to in Rule 5(a).

¶ 6. This Court amended Rule 5(a) of the Mississippi Rules of Appellate Procedure in 2005 to eliminate the requirement that a petitioner seek certification for an interlocutory appeal first from the trial court. A petitioner may now seek interlocutory appeal directly from the Supreme Court by filing a petition within twenty-one (21) days following the entry of the order which the petitioner submits for interlocutory review. This amendment is applicable only to petitions filed on or after March 1, 2005. Bennett filed his Petition for Interlocutory Appeal on January 24, 2005. Therefore, the 2004, rather than the 2005, revision of the Rules of Appellate Procedure is applicable in this matter. The 2004 revision of Rule 5(a) of the Mississippi Rules of Appellate Procedure states:

(a) Petition for Permission to Appeal. An appeal from an interlocutory order may be sought if the order grants or denies certification by the trial court that a substantial basis exists for a difference of opinion on a question of law as to which appellate resolution may:
(1) Materially advance the termination of the litigation and avoid exceptional expense to the parties; or
(2) Protect a party from substantial and irreparable injury; or
(3) Resolve an issue of general importance in the administration of justice. Appeal from such an order may be sought by filing a petition for permission to appeal with the clerk of the Supreme Court within 14 days after the entry of such order in the trial court with proof of service on all other parties to the action in the trial court. An order may be amended to include the prescribed certification or denial at any time, and permission to appeal may be sought within 14 days after entry of the order as amended.

Miss. R.App. P. 5(a) (emphasis added).

¶ 7. Based on the information available in the 2004 revision of Rule 5(a), the appropriate order date by which to measure the timeliness of Bennett’s appeal would be January 24, 2005, because this is the date the Amended Order Denying Defendant’s Motion and Plaintiffs Motion for Default, and Denying Certification for Interlocutory Appeal was filed. McCaffrey’s contention that June 7, 2004, represents the appropriate order date is erroneous. The circuit court entered an order denying Bennett’s Motion to Dismiss on this particular date. However, the circuit court did not enter its order denying certification until January 24, 2005. Bennett filed his Petition for Interlocutory Appeal with this Court on February 7, 2005, exactly 14 days later. Therefore, Bennett’s petition to this Court is timely.

Standard of Review

¶ 8. To the degree that a trial judge’s decision to grant or deny a motion for an extension of time is based upon a precept of law, the standard for this Court’s review shall be “plenary”; otherwise this Court shall apply the abuse-of-discretion standard. Which standard to apply is a decision to be made on an ad hoc basis. Rains v. Gardner, 731 So.2d 1192, 1198 (Miss.1999). When reviewing fact-based findings, this Court will only examine whether the trial court abused its discretion and whether there was substantial evidence supporting the determination. Triple C Transport, Inc. v. Dickens, 870 So.2d 1195, 1197-98 (Miss.2004). In this case, the circuit court judge did not base his decision upon a question of law, therefore, an abuse of discretion standard will apply.

I. Whether the Circuit Court erred in denying defendant’s motion to dismiss because the plaintiff failed to show good cause as to why process was not served within the time allowed by Rule 4(h) and the first 60-day extension granted by the Circuit Court.

¶ 9. Bennett argues he was not timely served with a copy of the summons and complaint as required by Rule 4(h) of the Mississippi Rules of Civil Procedure. Rule 4(h) provides:

(h) Summons: Time Limit For Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the Court’s own motion with notice to such party or upon motion.

Miss. R. Civ. P. 4(h). McCaffrey’s complaint was filed on January 7, 2003. She had 120 days, or until May 7, 2003, to serve a copy of the summons and complaint. Prior to the expiration of the 120 day period, McCaffrey, filed a motion to extend this period by 60 days. In her motion, she stated that her attempts to serve all four of the defendants were unsuccessful. As to Bennett, the proof of service stated “Unexecuted — subject has moved — incorrect street # 3/11/03.” The circuit court granted this motion on April 29, 2003. Based on this order, McCaffrey had until July 6, 2008 to effectuate service. During this time, McCaffrey even attempted process by publication by publishing the summons in the Clarion-Ledger on June 16,: 23, and 30.

¶ 10. Based on the facts in the record, the list below provides the dates and details of the actions McCaffrey took in her diligent attempts to serve Bennett:

March 11, 2003
Sheriff’s Officer Walter Ramsey attempted to serve Bennett at the address Bennett gave at the time of the accident, however, he reported that the process was “Unexecuted - Subject has moved - incorrect street # 3/11/2003.”
No Specific Dates Given
McCaffrey continued to search for Bennett’s correct address using the phone book, internet, and the United States Post Office.
June, 11, 2003
Rebecca G. Taylor (attorney for McCaffrey) signed and filed a sworn affidavit stating that after diligent inquiry, Bennett could not be found..
June 24, 2003
McCaffrey issued a subpoena on the Commissioner of Insurance in an effort to serve Bennett’s insurer to obtain information on his whereabouts. On June 25, 2003, the Commissioner of Insurance forwarded the subpoena to Bennett’s insurer.
June 16, 23, 30, 2003
McCaffrey attempted to serve Bennett by publication.
No Specific Date Given
Defendant, USF & G Insurance Company informed McCaffrey that their sources had located Bennett.
October 7,2003
Based on information provided by USF & G, McCaffrey filed a second motion for additional time (60 days) to serve summons, and the circuit court granted the motion.
October 22, 2003
Bennett was personally served in Harrison County, Mississippi.

¶ 11. These facts present substantial evidence that McCaffrey diligently attempted to serve Bennett using all the tools at her disposal. Also, once provided pertinent information as to Bennett’s whereabouts by her insurance company, McCaffrey sought to secure additional time to serve Bennett. Therefore, good cause existed for why process was not served within the time period allowed by Rule 4(h) and the initial extension provided by the circuit court. Accordingly, the circuit court did not abuse its discretion by granting McCaffrey the initial 60 day extension and denying Bennett’s Motion to Dismiss.

II. Whether the Circuit Court erred in denying Bennett’s motion to dismiss because McCaffrey did not demonstrate excusable neglect under Rule 6(b)(2) to allow for additional time to serve process, where said request was made ninety-two (92) days after the expiration of the first time extension.

¶ 12. The circuit court enlarged the time for McCaffrey to serve process from 120 to 180 days when it entered its first order on April 29, 2003. The 180 day period expired on July 6, 2003. Bennett argues that McCaffrey failed to take any action to get additional time to serve Bennett for 92 days thereafter. Subsequently, on October 7, 2003, McCaffrey fried a motion to extend the period to effectuate process by an additional 60 days. The circuit court granted this motion, and Bennett was personally served on October 22, 2003. Bennett further argues that the second extension was granted in violation of M.R.C.P. 6(b)(2) because McCaffrey did not demonstrate any type of excusable neglect.

¶ 13. Mississippi Rule of Civil Procedure (6)(b) states:

(b) Enlargement. When by these rules or by notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time, in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), 59(d), 59(e), and 60(b), except to the extent and under the conditions therein stated.

Miss. R. Civ. P. 6(b).

¶ 14. “ ‘Good cause’ for delay has been interpreted as ‘excusable neglect’ or adequate proof that there was a need for the delay or other justification of the delay which would convince the courts to grant an extension in the service of the defendant(s).” (Moore ex. Rel Moore v. Boyd, 799 So.2d 133, 136 (Miss.Ct.App.2001) (quoting Black v. Carey Canada, Inc. 791 F.Supp. 1120, 1126-27) (S.D.Miss.1990)). This excusable neglect standard is a very strict standard. Id. at 136 (quoting Black v. Carey Canada, Inc. 791 F.Supp. 1120, 1127 (S.D.Miss.1990)). A conscious and intentional delay of service by the plaintiff will not constitute good cause for an extension. Id.

¶ 15. As stated previously, McCaffrey established good cause for the delay in serving Bennett. The facts which established good cause for delay have also established excusable neglect. McCaffrey did not consciously or intentionally delay service, but used every means possible to place Bennett on notice of the lawsuit pending against him. Although her attempt to perform service by publication was defective, it provided notice to Bennett within the given parameters of the first 60-day time extension since his residence was unknown. When McCaffrey’s insurance company hired a private investigator to ascertain Bennett’s whereabouts and McCaffrey was informed of Bennett’s location, she acted with all due diligence by seeking the second time extension in order to personally serve Bennett. In this manner, the procedural defectiveness of the attempted service by publication was cured. Although ninety-two (92) days elapsed between the first extension and the second extension of time, McCaffrey’s actions firmly established good cause for the delay in service, and it is clear that she met the standard for excusable neglect.

¶ 16. Under the specific facts of- this case, we find that the circuit court did not abuse its discretion in granting McCaf-frey’s second motion for an additional sixty days to service process because McCaffrey established good cause and excusable neglect for the delay. Therefore, we affirm the decision of the circuit court.

CONCLUSION

¶ 17. For the reasons stated above, we affirm the judgment of the Circuit Court of Hinds County and remand this case for further proceedings consistent with this opinion.

¶ 18. AFFIRMED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. RANDOLPH, J., NOT PARTICIPATING.

      . Henry Phelps owned the car that Daniel E. Tucker was driving.

      . May 7, 2003, was 120 days after the complaint was filed.