author: McMILLAN, Presiding Judge. BASCHAB, Judge,

text:
    Calvin MOORE v. STATE.
    CR-01-1968.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2003.

      Amy L. Peake and L. Dan Turberville, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for appel-lee.
   McMILLAN, Presiding Judge.

The appellant, Calvin Moore, was indicted by a Jefferson County grand jury on one count of murder made capital because the murder occurred during the commission of a rape and on one count of murder made capital because the murder occurred during the commission of a burglary. See § 13A-5~40(a)(3) and (4), Ala.Code 1975. Moore pleaded not guilty and not guilty by reason of mental disease or defect to both counts in the indictment. A jury found Moore guilty of both counts of capital murder. The trial court accepted the jury’s sentencing recommendation and sentenced Moore to life imprisonment without parole on both counts.

The evidence adduced at trial tended to show the following. At around 3:00 p.m. on April 15, 1999, Archie Cooper arrived home from work and found his mother, Pauline Cooper, dead in a bedroom of her Birmingham residence. The back door of the house was open. Pauline Cooper had been stabbed numerous times and had bled to death from her wounds. A number of her injuries were defensive wounds to her hands. Paramedics and police were called to the scene.

Shortly after the police arrived, someone pointed out Moore, who had walked up to the crime scene, as a person who knew Pauline Cooper and who had been seen at Cooper’s residence earlier that day. Police officers asked Moore if he would come to the police station for questioning. Moore agreed to accompany the officers to the station house, where, on the evening of April 15, John Ennis, a homicide detective with the Birmingham Police Department, interviewed him. Det. Ennis testified that Moore stated that he had gone to Cooper’s house at around 9:00 a.m. that morning, which Moore had maintained was his everyday routine, and that Cooper had come to her door and had told him to come back later because she was not feeling well. Moore told Det. Ennis that he left at that time and did not return to Cooper’s place until that afternoon, when he saw the police and paramedics outside her residence. Det. Ennis testified that during the course of the interview, he noticed what he thought might be bloodstains on Moore’s shoes and wristwatch, and he collected those items from Moore. He stated that he then asked Moore if he would return to the police station the next day for additional questioning and that Moore agreed to do so.

The following morning, April 16, Det. Ennis and another detective went to Moore’s house to pick him up and drive him to the police station for a second interview. Before leaving Moore’s residence, they asked him for, and obtained, the clothing he had worn the previous day. Early in the interview on April 16, Det. Ennis realized that Moore was changing his statement from the one he had made the previous day. At that point, he read Moore his Miranda rights. Det. Ennis testified that Moore waived his Miranda rights and voluntarily agreed to make a statement. In the statement, which was videotaped, Moore told Det. Ennis that he had found Pauline Cooper’s body upon returning to her home on April 15. Moore also stated that he and Cooper were good friends, that they had had a sexual relationship at one time but that Cooper had told him she was no longer interested in such a relationship, and that he had once asked Cooper to marry him but she had turned him down. Moore told Det. Ennis that he had last had sex with Cooper in 1997 or 1998.

The State’s theory at trial was that Moore raped and murdered Cooper out of anger over her having rejected his romantic and sexual overtures. The State offered testimony from several of Cooper’s family members, who stated that Moore would often come by Cooper’s house and that Cooper was friendly with Moore, but that they were unaware of any romantic or sexual relationship between Cooper and Moore. Cooper’s daughter testified that Cooper had told her that Moore “liked her in that way, but she didn’t like him like that.” (R. 361-62.) The defense, however, presented witnesses who maintained that they believed there was a romantic and sexual relationship between the two.

Angelo Della Manna, a scientist with the DNA unit of the Alabama Department of Forensic Sciences’ crime lab, testified concerning his analysis of a rape kit performed during the autopsy of Pauline Cooper. Della Manna stated that the DNA profile of semen found on a vaginal swab taken from Cooper’s body matched Moore’s. According to Della Manna, Moore’s DNA profile is “extremely rare” and occurs in “approximately one of 77.5 billion white individuals, and one of 54.9 million black individuals.” Della Manna also testified concerning his analysis of the shoes and other items of clothing that Moore was wearing on the day of the' murder. He stated that he found several small blood spatters on Moore’s shoes that appeared to have been deposited with a low to medium amount of force, which he said was consistent with what might occur during a beating or a stabbing. Della Manna found similar blood spatters on a baseball cap Moore was wearing on the day of the murder. Della Manna also found a small triangle-shaped bloodstain on the left calf of Moore’s pants. The stain was consistent with someone having wiped a bloody triangular-tipped knife across the surface of the pants. Testing also revealed a small amount of blood on the wristwatch Moore was wearing on the day of the murder. Della Manna testified that he was unable to determine whose blood was on Moore’s shoes or on the other items of Moore’s clothing that he analyzed, and that he was unable to ascertain if any of the blood was human blood.

Moore testified on his own behalf. He stated that he had known Pauline Cooper for several years, that he visited her house almost every morning, and that he and Cooper would sit and watch television together. He stated that they never argued or fought. He maintained that he and Cooper started having sexual relations in 1997 or 1998 and that they continued to have sex occasionally after that, but that he was not her boyfriend. He stated that although Cooper had a boyfriend, it did not make him angry to see Cooper and her boyfriend together. Moore testified that he and Cooper had consensual sex on the night before her murder. He further testified that on the day Cooper was murdered, he went to her house át around 9:00 a.m. and that Cooper came to her door and told him to come back later because she was not feeling well. Moore stated that he left and returned later, but that no one answered when he knocked on Cooper’s door. According to Moore, the door opened as he knocked, so he entered the house. Moore stated that he then found Cooper lying on a bed in one of the rooms; she appeared to be dead. He stated that he got scared and left without calling the police.

In support of his alternative plea of not guilty by reason of mental disease of defect, Moore offered the testimony of Dr. Alan Blotcky, a clinical psychologist hired by the defense. Dr. Blotcky testified that he evaluated Moore at the Jefferson County jail in January 2001 and that he also reviewed Moore’s medical records. He stated that he administered a verbal IQ test to Moore and that Moore scored a 59, which put him in the mildly retarded range. Dr. Blotcky testified that Moore suffered from schizophrenia and that his medical records indicated that he had been receiving treatment for that mental illness since the 1970s. According to Dr. Blotcky, Moore’s medical records also indicated that Moore sometimes had difficulty taking the antipsychotic medication that had been prescribed for him, and that his failure to take the medication caused the symptoms of his schizophrenia to get much worse. Dr. Blotcky stated that, in his opinion, Moore’s schizophrenia could have caused him to do acts that he later could not recollect and as to which, at the time he was committing them, he would have no understanding of their wrongness. The defense also presented testimony from A.B. Jackson, Moore’s brother-in-law, who stated that he had noticed Moore on many occasions apparently speaking in response to voices when no one was talking to him. Jackson also testified that he had seen scars on Moore’s body that were apparently the result of self-mutilation. Donna Click, a social worker who worked as a liaison between the criminal justice system and the mental health system, testified that she talked to Moore when he was brought into the jail after his arrest for Pauline Cooper’s murder. According to Click, Moore was extremely upset — he was crying, and shaking, and near “hysteria.” (R. 909.)

The State’s expert, Dr. Kamel Nagi, a forensic psychiatrist for Taylor Hardin Secure Medical Facility, testified that he evaluated Moore at the Birmingham jail in January 2001 and that he also reviewed Moore’s medical records. Dr. Nagi stated that Moore’s schizophrenia appeared to be in remission when he met with him, that Moore was taking the medication that had been prescribed for schizophrenia, that Moore did not appear depressed or manic, that his thinking appeared to be logical and rational, and that he exhibited no symptoms of psychosis during the evaluation. Dr. Nagi opined that Moore had the ability to distinguish between right and wrong at the time of the offense. He stated that Moore’s schizophrenia did not affect his ability to distinguish between right and wrong, but that it affected only his ability to control his emotions. Dr. Nagi testified that it was his opinion that if Moore did rape and murder Pauline Cooper, his acts were not caused by his mental illness but were more likely motivated by “[rejection over] sex, and money, and ... [a] domestic dispute.” (R. 544; R. 554.)

On appeal, Moore contends that the trial court erred in allowing the State to introduce, during the guilt phase of its case-in-chief, evidence of Moore’s prior convictions, specifically a 1969 conviction for assault with intent to murder, a 1971 conviction for assault with intent to ravish, and a 1977 conviction for murder.

Before trial, Moore moved in limine to prevent the State from introducing evidence of his prior convictions. Moore maintained that the prior convictions were inadmissible under Rule 404(b), Ala. R. Evid., because, he argued, they were irrelevant to any issue in the case and their prejudicial effect outweighed their probative value. The prosecutor argued that the prior convictions would be admissible pursuant to 404(b), Ala. R. Evid., to show identity, intent, and motive and that they were also admissible to rebut Moore’s defense of not guilty by reason of mental disease or defect. In addition, the prosecutor argued that the prior convictions would be admissible pursuant to Rule 609(a), Ala. R. Evid., to impeach Moore’s credibility if Moore chose to testify on his own behalf at trial. Moore, however, maintained that under Rule 609(b), Ala. R. Evid., the prior convictions were inadmissible for impeachment purposes because, he argued, they were too remote in time. The trial court ruled that Moore’s prior convictions would be admissible under Rule 609(a) to impeach Moore if he took the stand and testified; however, the court reserved ruling on the admissibility of the prior convictions under Rule 404(b) or to rebut Moore’s defense of not guilty by reason of mental disease or defect.

At trial, during the guilt phase of its case-in-chief, the State sought to introduce the evidence of Moore’s prior convictions through the testimony of Det. John Ennis of the Birmingham Police Department, arguing, as it had at the motion in limine hearing, that the prior convictions were admissible under Rule 404(b) to show identity, intent, and motive and to rebut Moore’s defense of not guilty by reason of mental disease or defect. Moore renewed his objection to the admission of evidence of his prior convictions. The trial court overruled Moore’s objection, and Det. En-nis then testified that Moore had been convicted in 1969 for assault with intent to murder, in 1971 for “rape” [sic], and in 1977 for murder. Det. Ennis did not testify concerning the specific facts underlying any of Moore’s prior convictions, and the State presented no other evidence concerning the details of the convictions.

Later at trial, during the guilt phase of the defense’s case, Moore took the stand and testified on his own behalf. At the close of the guilt phase of the trial, before the jury began its deliberations, the trial court instructed the jury that it could consider the evidence of Moore’s prior convictions for the purpose of assessing Moore’s credibility as a testifying witness and in determining the weight to give Moore’s testimony. In addition, the trial court instructed the jury that the court had allowed the evidence of Moore’s prior convictions “for the limited purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” (R. 1000.)

Moore contends that the State has no proper justification for the admission of the evidence of his prior convictions. He claims that the evidence was impermissible character evidence that does not fit into any exception in Rule 404(b), Ala. R. Evid., and that the convictions were too remote in time to be admissible for purposes of impeachment under Rule 609(a), Ala. R. Evid.

Rule 404(b), Ala. R. Evid., provides, in pertinent part:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ...”

As this court observed in Woodard v. State, 846 So.2d 1102 (Ala.Crim.App.2002):

“Evidence of collateral crimes is ‘presumptively prejudicial because it could cause the jury to infer that, because the defendant has committed crimes in the past, it is more likely that he committed the particular crime with which he is charged — thus, it draws the jurors’ minds away from the main issue.’ Ex parte Drinkard, 777 So.2d 295, 296 (Ala.2000). In Robinson v. State, 528 So.2d 343 (Ala.Crim.App.1986), this Court explained the exclusionary rule as follows:
“ ‘ “ ‘On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question.’ ” Pope v. State, 365 So.2d 369, 371 (Ala.Cr.App.1978), quoting C. Gamble, McElroy’s Alabama Evidence § 69.01 (3d ed.1977). “ ‘This exclusionary rule is simply an application of the character rule which forbids the State to prove the accused’s bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors.’ ” Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985), quoting McElroy’s supra, § 69.01(1). Thus, the exclusionary rule serves to protect the defendant’s right to a fair trial. “ ‘The jury’s determination of guilt or innocence should be based on evidence relevant to the crime charged.’ ” Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983); Terrell v. State, 397 So.2d 232, 234 (Ala.Cr.App.1981), cert. denied, 397 So.2d 235 (Ala.1981); United States v. Turquitt, 557 F.2d 464, 468 (5th Cir.1977).
“ ‘ “If the defendant’s commission of another crime or misdeed is an element of guilt, or tends to prove his guilt otherwise than by a showing of bad character, then proof of such other act is admissible.” Saffold v. State, 494 So.2d 164 (Ala.Cr.App.1986). The well-established exceptions to the exclusionary rule include: (1) relevancy to prove identity; (2) relevancy to prove res gestae; (3) relevancy to prove scienter; (4) relevancy to prove
intent; (5) relevancy to show motive; (6) relevancy to prove system; (7) relevancy to prove malice; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes. Willis v. State, 449 So.2d 1258, 1260 (Ala.Cr.App.1984); Scott v. State, 353 So.2d 36 (Ala.Cr.App.1977). However, the fact that evidence of a prior bad act may fit into one of these exceptions will not alone justify its admission. “ ‘Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government’s case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.’ ” Averette v. State, 469 So.2d 1371, 1374 (Ala.Cr.App.1985), quoting United States v. Turquitt, supra at 468-69. “ ‘ “Prejudicial” is used in this phrase to limit the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial.’ [Citation omitted.] ‘Of course, “prejudice, in this context, means more than simply damage to the opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.” ’ ” Averette v. State, supra, at 1374.’
528 So.2d at 347.”

846 So.2d at 1106-07.

Here, the trial court ruled that the evidence of Moore’s prior convictions was admissible to show identity, intent, and motive. However, those exceptions to the exclusionary rule were inapplicable under the facts of this case and could not have formed the basis for admitting the prior convictions during the State’s case-in-chief. For evidence of the accused’s commission of another crime or bad act to be admissible to show identity, the now-charged crime must be committed in the same hovel or peculiar manner as the previous crime. See, e.g., Ex parte Baker, 780 So.2d 677, 679-80 (Ala.2000); Bighames v. State, 440 So.2d 1231, 1233 (Ala.Crim.App.1983). See also Charles W. Gamble, McElroy’s Alabama Evidence § 69.01(8) (5th ed.1996). Here, the State made no attempt to establish the circumstances surrounding any of the prior crimes for which Moore was convicted, much less any attempt to suggest how the circumstances surrounding the prior crimes were similar to those surrounding the presently charged crime. Thus, Moore’s prior convictions were not admissible under the identity exception. Nor were the prior convictions admissible to show intent or motive, because there was no showing that the acts underlying the prior convictions had a logical tendency to lead to any inference that Moore, because he committed those prior acts, had the prerequisite intent to commit the now-charged crime or was motivated to commit the now-charged crime. See, e.g., Ex parte Killough, 438 So.2d 333, 335-36 (Ala.1983). See also McElroy’s Alabama Evidence §§ 69.01(5) and (7). Moreover, Moore did not claim inadvertence or self-defense, and intent was evident from the nature of the present crimes. See, e.g., Brewer v. State, 440 So.2d 1155, 1159 (Ala.Crim.App.1983). Although Moore did claim at trial that he had had consensual sex with Pauline Cooper on the night before her murder, we do not find that Moore’s 1971 conviction for assault with intent to ravish — an offense that occurred more than 25 years before the present offense and that was committed under unrelated circumstances against a third party with no apparent connection or relevant similarity to the victim in the present case — has any bearing on the issue of Moore’s intent to commit a rape in the present case or his motive to commit such an offense. See Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983). Likewise, the State should not have been allowed to supply Moore’s intent to kill in the present case, or an apparent motive for the murder, by showing that he had assaulted and killed other persons on unrelated occasions under what appear to be wholly unrelated circumstances. See Aaron v. State, 596 So.2d 29, 30-31 (Ala.Crim.App.1991); Caylor v. State, 353 So.2d 8, 10 (Ala.Crim.App.1977). Such evidence, in its final analysis, shows nothing more than that Moore’s character is bad. This is, of course, not an acceptable purpose for admitting the evidence. See Ex parte Killough, 438 So.2d at 336. Thus, Moore’s prior convictions were not admissible under either the intent exception or the motive exception.

The trial court also ruled that the evidence of Moore’s prior convictions was admissible to rebut Moore’s defense of not guilty by reason of mental disease or defect. However, even though wide latitude to inquire into the acts of a defendant’s life is given both the defendant and the State in cases where insanity is relied upon as a defense, Alabama courts have imposed the restriction that prior bad acts, to be admitted in such cases, “ ‘must have a tendency to shed light on the accused’s state of mind when the act for which he is being tried was committed.’ ” Ex parte Vaughn, 869 So.2d 1090, 2095 (Ala.2002), quoting Barbour v. State, 262 Ala. 297, 303, 78 So.2d 328, 333 (1954). See also, e.g., Ex parte Miller, 460 So.2d 228, 229 (Ala.1984); Watts v. State, 282 Ala. 245, 247, 210 So.2d 805, 807 (1968); Coffey v. State, 244 Ala. 514, 520-21, 14 So.2d 122, 127-28 (1943); Pilkington v. State, 46 Ala. App. 716, 717-18, 248 So.2d 755, 756 (1971). Here, the State- made no attempt to offer any evidence indicating that Moore’s state of mind was the same at the time of his prior convictions as it was at the time of the commission of the present offense, and no effort was made to explain how the evidence of the prior convictions was pertinent to rebut Moore’s insanity defense. As we have noted, the State offered no evidence concerning the specific facts underlying any of Moore’s prior convictions. Moreover, neither the State’s expert nor the defense’s expert indicated that consideration of Moore’s prior convictions played a role in their conclusions regarding Moore’s mental state at the time of the present offense. Indeed, the State supplied neither lay nor expert testimony to show the relevance between the prior convictions and Moore’s mental state at the time of the present offense. See Ex parte Vaughn, supra, 869 So.2d at 1098. Finally, the trial court did not instruct the jury that it could consider Moore’s prior convictions in connection with his insanity defense in order to determine his mental state at the time of the present offense. At least with respect to its possible pertinence to the issue of Moore’s mental state at the time of the present offense, the evidence of his prior convictions was simply placed before the jury and left to do its damage. Because the State- presented nothing to indicate that the prior convictions were relevant to Moore’s mental state at the time of the present offense, the prior convictions were not admissible to rebut Moore’s defense of not guilty by reason of mental disease or defect.

In its brief to this court, the State, perhaps recognizing the weakness of the other rationales for admitting Moore’s pri- or convictions, urges, as the sole basis for allowing such evidence, that the evidence of the prior convictions was rendered competent to impeach Moore’s credibility pursuant to Rule 609(a), Ala. R. Evid., once Moore took the witness stand to testify on his own behalf. The State cites Smith v. State, [Ms. CR-97-1258, December 22, 2000] — So.2d - (Ala.Crim.App.2000), affd in part, rev’d in part on other grounds and remanded, Ex parte Smith, [Ms. 1010267, March 14, 2003] — So.2d - (Ala.2003), where this court held that any error in the admission of the defendant’s prior convictions as part of the State’s case-in-chief was cured once the defendant took the witness stand, because the defendant’s prior convictions became admissible to impeach his credibility when he testified. — So.2d at-. ,

“ ‘It is of no “consequence that this testimony may have been incompetent at the time it was offered, if it was subsequently rendered [competent].” Hanners v. State, 147 Ala. 27, 41 So. 973, 975 (1906). “[W]hile, ordinarily, in the introduction of evidence, it should be competent at the time when offered, still, if rendered competent by the subsequent introduction of other evidence, this is sufficient to correct and cure any error that might otherwise have existed in the admission of the evidence first offered.” Collins v. State, 138 Ala. 57, 34 So. 993, 994 (1903).’ ”

Smith, — So.2d at -, quoting Rowe v. State, 522 So.2d 328, 330 (Ala.Crim.App.1988)(alteration in Smith). Moore maintains that, notwithstanding the fact that he took the stand at trial, his prior convictions were too remote-in time to be admissible for impeachment purposes.

Rule 609(a), Ala. R. Evid., allows the credibility of a defendant who testifies to be impeached by evidence of prior convictions punishable by death or imprisonment in excess of one year (i.e., a felony), provided the court determines that the probative value of the evidence outweighs its prejudicial effect to the defendant. See Rule 609(a)(1)(A) and (B); Ex parte Minor, 780 So.2d 796, 800 (Ala.2000). Rule 609(b), Ala. R. Evid., provides that evidence of such convictions is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the defendant from the confinement imposed for the conviction, whichever is later, unless the court determines that the probative value of the conviction “substantially outweighs” its prejudicial effect to the defendant. See McClendon v. State, 813 So.2d 936, 944 (Ala.Crim.App.2001).

Discussing the length-of-time standard set forth in Rule 609(b), Professor Gamble has stated:

“[A]ny conviction not more than ten years old, as measured within the above rule, is admissible over a remoteness objection. Any conviction more than ten years old is presumptively too remote and, therefore, inadmissible with residual discretion in the court to admit if, in the interest of justice, it is determined that the probative value of the conviction substantially outweighs its prejudicial impact....
“The ten-year time period begins to run from the date of release or conviction whichever is later. This, of course, is normally going to be the date of release ....
“If the conviction is more than ten years old then a presumption arises that it is too remote and should not be usable for impeachment. Some refer to this presumption as a rebuttable one. It casts upon the offering party the burden of convincing the court that the probative value of the conviction substantially outweighs its prejudicial impact. Among the factors to be considered in the court’s balancing determination are the impeaching party’s need for the evidence (has the witness, for example, already been impeached), the nature of the crime for which the witness has been convicted (meaning the more relevant to credibility the greater the probative value), the degree of remoteness, the importance of the witness’ testimony and the centrality of the credibility issue. If the person being impeached is the accused or a defense witness then similarity to the now-charged crime may be a factor in the balancing determination. Rule 609(b) requires that the probative value be shown to ‘substantially’ outweigh the prejudice. This means that convictions more than then ten years old will rarely be admitted. In order to guarantee knowledgeable appellate review, the trial court should make an on-the-record determination of the prejudicial balancing issue supported by specific facts.”

McElroy’s Alabama Evidence § 145.01(19)(5th ed.1996) (footnotes omitted).

The prior convictions that the State introduced in this case were (1) a 1969 conviction for assault with intent to murder, (2) a 1971 conviction for assault with intent to ravish, and (3) a 1977 conviction for murder. The record reflects that Moore was released from the confinement imposed for the 1977 murder conviction in 1997. Thus, within the application of Rule 609(a) and Rule 609(b), evidence of Moore’s conviction for murder was admissible over any remoteness objection, for purposes of impeaching Moore’s credibility as a testifying witness. Accordingly, we credit the State’s argument on appeal to the extent that the State maintains that any error in the admission of Moore’s pri- or murder conviction as part of the prosecution’s case-in-chief was cured once Moore took the witness stand. See Smith, supra, — So.2d at -.

The admission of Moore’s other two pri- or convictions, however, is more problematic. The record reflects that Moore was released from the confinement imposed for his 1969 conviction for assault with intent to murder no later than 1971, and that he was released from the confinement imposed for his 1971 conviction for assault with intent to ravish no later than 1974. Thus, within the application of Rule 609(a) and Rule 609(b), both the 1969 conviction and the 1971 conviction were presumptively too remote to be admissible for purposes of impeaching Moore’s credibility. Did the State then meets its burden of showing that the probative value of these two convictions substantially outweighed their prejudicial impact? Because the record convinces us that that burden was not met here, we conclude that the trial court erred in permitting the State to impeach Moore with evidence of the 1969 and 1971 convictions.

First, the probative value of the 1969 and 1971 convictions is questionable. “The probative value of a prior conviction is a function of at least two factors, ’the nature of the past crime and the remoteness of the conviction.” United States v. Cathey, 591 F.2d 268, 276 (5th Cir.1979). Here, neither the 1969 conviction nor the 1971 conviction was clearly related to Moore’s truth-telling -capabilities; that is, neither involved dishonesty or a false statement. See Cathey, 591 F.2d at 276 (“Crimes involving dishonesty or false statement are often more probative of the witness’s lack of credibility than even more serious crimes involving violence.”). See also C. Gamble, Gamble’s Alabama Rules of Evidence, § 609(b) (1995)(cumulative supp. 2001) (“The more relevant the crime is to credibility, the more likely it is to be admitted despite remoteness. A fraud or false statement conviction, for example, would more likely be admitted than a manslaughter eonvietion.”)(foot-notes omitted). Furthermore, Moore was released from the confinement imposed for those convictions more than 25 years before his trial. “[T]he probative value of a prior conviction on the issue of credibility tends to decrease with the passage of time.” United States v. Shapiro, 565 F.2d 479, 481 (7th Cir.1977). See also Gamble’s Alabama Rules of Evidence, § 609(b) (cumulative supp. 2001)(“Probatiye value, as a basis for outweighing the prejudice in admitting a conviction more than 10 years old, decreases with each increase in time lapse between the time of the conviction and the time of its offered use for impeachment.”).

Next, there were no exceptional circumstances in the case that would justify the use of the 1969 and 1971 convictions to impeach Moore’s credibility. As we have noted, Moore’s credibility could have been sufficiently impeached by the use of the 1977 murder conviction. There was little need to add the icing of the earlier two convictions. See Gamble’s Alabama Rules of Evidence, § 609(b) (cumulative supp. 2001)(“If the conviction is merely cumulative of other impeachment evidence then its probative value is lessened and its prejudice is thereby increased.”). See also Cathey, supra, 591 F.2d at 277 (“[W]hen a party wishes to use on over-age conviction, the trial judge must consider whether the witness already has been impeached, and if so, the probative value of the prior conviction decreases accordingly.”).

Particularly troubling, under the facts of this case, was the introduction of Moore’s 1971 conviction for assault with intent to ravish. Before the jury, Det. Ennis referred to this conviction as a conviction for rape, and, with regard to that charge, records introduced at trial reflected that Moore was indicted for rape and that he eventually pleaded guilty to the lesser offense of assault with intent to ravish. In any event, the jury was made aware that Moore had previously been convicted of a sex offense involving force or the threat of force. The risk that unfair prejudice would result from the admission of such evidence was especially great. “When the prior conviction and the charged act are of a similar nature, the danger [of unfair prejudice] increases.” United States v. Shapiro, 565 F.2d at 481. “[I]f the prior conviction is similar to the new charges, the jury may misuse the prior conviction as evidence of guilt.” United States v. Cathey, 591 F.2d at 275. Here, Moore was linked to the crime by, among other things, evidence showing that the DNA profile of semen found on a vaginal swab taken from Pauline Cooper’s body matched Moore’s. Attempting to offer an innocent explanation for this evidence, Moore testified that he had had consensual sex with Cooper on the evening before the murder. However, the jury, hearing that Moore had previously been convicted of a sex offense, which was described as a “rape” by a State’s witness, could hardly avoid drawing the inference that the past sex-offense conviction suggested some probability that Moore committed the rape he was charged with committing under the capital-murder indictment — in which case, of course, the jury would almost surely regard Moore as guilty of committing all of the acts alleged in the capital-murder indictment. The prosecutor, during closing arguments at the guilt phase of the trial, even explicitly drew a connection between Moore’s past conviction for having sex with someone “against their consent” and the allegation in the capital-murder indictment that he had raped Pauline Cooper. (R. 947.) “The jury, despite limiting instructions, can hardly avoid drawing the inference that the past conviction suggests some probability that defendant committed the similar offense for which he is currently charged.” United States v. Beahm, 664 F.2d 414, 418-19 (4th Cir.1981). See Gamble’s Alabama Rules of Evidence, § 609(b) (cumulative supp. 2001) (“When the witness being impeached with a stale conviction is the accused, similarity between the convicted crime and the now-charged crime weighs toward exclusion.”). Given the nature of the State’s evidence, it was arguably more damaging to Moore’s defense for the jury to know that he was a prior sex offender than that he had previously been convicted of murder.

We recognize that in balancing probative value versus prejudicial impact, some courts have considered whether other criminal convictions arose after the stale convictions and have deemed such subsequent convictions to have rebutted the presumption, which underlies the remoteness standard of Rule 609(b), that a witness’s veracity has improved since the date of a stale conviction. See United States v. Holmes, 822 F.2d 802, 804-05 (8th Cir.1987); United States v. Brown, 603 F.2d 1022, 1029 (1st Cir.1979) (both cited in Gamble’s Alabama Rules of Evidence, § 609(b) (cumulative supp.2001)). Indeed, an argument urged by the prosecutor in opposing Moore’s motion in limine to prevent the State from introducing his prior convictions was that the time-standard of Rule 609(b) was effectively “tolled” during Moore’s 20-year term of imprisonment after his 1977 murder conviction and that, accordingly, the murder conviction rendered Moore’s two earlier convictions not stale. However, given the great weight of the other factors suggesting the prejudicial effect.of admitting Moore’s earlier convictions, we do not find the fact of his 1977 murder conviction to be sufficiently probative to rebut the presumption underlying the remoteness standard of Rule 609(b).

For the reasons stated above, we find that the State did not meet its burden of showing that the probative value of Moore’s 1969 conviction for assault with intent to murder and his 1971 conviction for assault with intent to ravish substantially outweighed their prejudicial impact. See Rule 609(b), Ala. R. Evid. Thus, the trial court erred in admitting evidence of the 1969 and 1971 convictions. We cannot state with fair assurance that the error did not injuriously affect Moore’s substantial rights. See Rule 45, Ala. R.App. P. Accordingly, Moore’s capital-murder convictions are reversed and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB and SHAW, JJ., concur.

BASCHAB, J., concurs specially, with opinion, which WISE, J., joins.

BASCHAB, Judge,

concurring specially.

I agree with the rationale of Holmes and Brown that the time standard set forth in Rule 609(b), Ala. R. Evid., should be tolled by the appellant’s imprisonment on his 1977 murder conviction and that therefore his two earlier convictions should not be considered stale. However, I also recognize that the rules and the caselaw in Alabama do not support such a finding at this time. Accordingly, I concur specially to urge that Rule 609(b), Ala. R. Evid., be revised and/or interpreted to provide for such a tolling.

      . Two of Cooper’s three adult children resided in the house with her.

      . Moore is African-American.

      . The State gave Moore advance notice that it intended to introduce the prior convictions at trial.

      . In Ex parte Register, 680 So.2d 225 (Ala.1994), the Alabama Supreme Court, recognizing a trend toward liberalness in allowing collateral-act evidence in cases involving sex crimes, held that evidence of the defendant’s prior sexual misconduct committed upon his natural daughter was properly admitted under the motive exception in a prosecution for sexual offenses that the defendant had committed against his stepdaughters, because such evidence "had some tendency to show that [the defendant] had a passion or propensity for unusual and abnormal sexual relations.” 680 So.2d at 228. After Ex parte Register, this court in a number of cases approved the introduction of evidence of a defendant’s sexual misconduct with persons other than the victim under the motive exception. See, e.g., Proctor v. City of Prattville, 830 So.2d 38, 41 (Ala.Crim.App.2001); Ritchie v. State, 808 So.2d 71, 74-75 (Ala.Crim.App.2001); Estes v. State, 776 So.2d 206, 210-11 (Ala.Crim.App.1999); Smith v. State, 745 So.2d 284, 289-90 (Ala.Crim.App.1998); Worthy v. State, 724 So.2d 55, 59 (Ala.Crim.App.1998); Campbell v. State, 718 So.2d 123, 129-30 (Ala.Crim.App.1997). In considering the relevance of one sex offense to show motive for committing another, the inquiry in those cases has turned on the similarity in the circumstances surrounding the collateral acts and the charged offense and the similarity of the relationships between the accused and the victims. In nearly all of those cases, moreover, the victims of the collateral acts and the victims of the charged offense were minors (although this factor is not a prerequisite to applying the motive exception to sex offenses). In any event, there is no suggestion in the record of any similarity in the circumstances surrounding Moore’s 1971 conviction for assault with intent to ravish and the. circumstances of the present offense, nor is there any suggestion of special similarity of the relationships between Moore and the victims in the two cases.

      . As noted above, Det. Ennis, in his testimony, referred to the 1971 conviction as a conviction for rape. However, records introduced into evidence at trial reflected that, while Moore was indicted for rape, he pleaded guilty to assault with intent to ravish.

      . We caution the State, in the event of a retrial, that, based on the record before us, there appears to be no proper justification for admitting evidence of Moore’s 1977 murder conviction during the State’s case-in-chief.


source: Caselaw Access Project

author:
BASCHAB, Judge.
      COBB, Judge,

license: Public Domain

text:
    Jovonda Renee RODGERS and Derrick Marquet Jefferson v. STATE of Alabama.
    CR-02-1687.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2003.
    Thomas E. Harrison, Mobile, for appellants.
    William H. Pryor, Jr., atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   BASCHAB, Judge.

APPEAL DISMISSED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and SHAW and WISE, JJ., concur; COBB, J., concurs in part and dissents in part, with opinion.

COBB, Judge,

concurring in part and dissenting in part.

I respectfully dissent from the majority’s dismissal in an unpublished memorandum of Derrick Marquet Jefferson’s appeal. I concur in its dismissal of the appeal by Jefferson’s eodefendant, Jovon-da Renee Rodgers.

As for Jefferson’s cause, I believe that we should reexamine our caselaw concerning the preservation of issues before entering a guilty plea. Previously, we have held:

“It is clear that by pleading guilty, a defendant waives all nonjurisdictional defects occurring before the plea. See, e.g., Martin v. State, 579 So.2d 69, 70 (Ala.Cr.App.1991). Because ‘a guilty plea represents a break in the chain of events which has preceded it in the criminal process,’ Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), we have required a defendant who wishes to appeal an adverse ruling on an issue raised prior to the entry of the plea to inform the trial court, at the time he enters his plea, that he intends to reserve that issue for appeal. See Sawyer v. State, 456 So.2d 110 (Ala.Cr.App.1982), reversed after record supplemented, 456 So.2d 112 (Ala.1983). The defendant’s plea is, in effect, conditioned on his right to appeal the prior adverse ruling. See 2 W. LaFave & J. Israel, Criminal Procedure, § 20.6(b) (1984). Recently, Justice Maddox summarized the Alabama law on this point as follows:
“ ‘Ordinarily, a guilty plea waives all nonjurisdictional matters, including a trial court’s refusal to suppress evidence, but this Court has, by case law, permitted an exception to that general rule when a defendant specifically reserves his or her right to appeal such a ruling on a motion to suppress, as this petitioner did. Ex parte Sawyer, 456 So.2d 112 (Ala.1983) (defendant allowed to supplement record on appeal to show that search and seizure issue was reserved when the plea of guilty was entered).’
“Ex parte Hergott, 588 So.2d 911, 916 (Ala.1991) (Maddox, J., dissenting) (emphasis in original).
“As Justice Maddox’s parenthetical explanation of Sawyer indicates, a defendant must reserve his right to appeal an adverse ruling on an issue arising before the plea ‘when the plea of guilty [is] entered.’ The reason behind such a requirement is clear: because a guilty plea waives all nonjurisdictional defects in proceedings occurring before the plea, Martin, supra, and ‘a guilty plea represents a break in the chain of events which has preceded it in the criminal process,’ Tollett, supra, an unconditional plea must be taken to represent the defendant’s decision to [forgo] any challenge to events occurring before the plea. If the defendant does not intend to [forgo] such challenges, he must make that intent clear before he enters his plea.”

Prim v. State, 616 So.2d 381, 382-83 (Ala.Crim.App.1993).

In this case, during Jefferson’s plea colloquy, the trial court accepted Jefferson’s plea, after which the following exchange occurred:

“[Defense counsel]: Judge, we would for the record like to preserve for purposes of appeal one issue.
“THE COURT: There is no appeal from this if you plead guilty. That’s the new rules. So if you don’t want to — if you don’t want to appeal it — I mean if you want to appeal it then you can’t plead.
“[Defense counsel]: Judge I didn’t think that rule took effect until after this had occurred.
“THE COURT: Well, I don’t — of course I don’t know it says, they’ve changed the rules. Wait a minute. That’s right, I think you can if you preserve something.
“[Defense counsel]: If you specifically preserve it, that’s correct, Judge.
“THE COURT: I think that’s right.
“[Defense counsel]: We just wanted to preserve that one issue on—
“THE COURT: On the suppression—
“[Defense counsel]: Of the suppression for the purposes of appeal.
“THE COURT: Well, I think you can do that and I guess if you can’t, there is no harm done. So it should, the record should reflect that he reserves the right not to appeal on anything except he can appeal on this, my ruling of the denial of the motion to suppress the evidence.”

(R. 55-56.)

Although the objection was in fact entered after the trial court had accepted the plea, the trial court allowed Jefferson to preserve the suppression issue for appellate review.

I am concerned that the trial court’s agreement to allow Jefferson to preserve this issue for appellate review was part and parcel of his guilty plea agreement. It is more than probable that trial counsel informed Jefferson that, although he was pleading guilty, he was nonetheless preserving the suppression issue for appellate review; the trial court itself assured the Jefferson of that fact. One must ask whether Jefferson would have pleaded guilty if he did not think that this issue had preserved for appellate review. Cf. Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (“The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity.”). That is, I am concerned that if we hold that this issue was in fact not preserved for appellate review, when the defendant was apprised by both counsel and the trial court that the issue was preserved, we are nullifying a portion of the plea agreement, and, in turn, rendering this guilty plea involuntary. Brady v. United States, 397 U.S. 742, 770, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (“In our view a defendant’s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant’s confession.” (Emphasis added.)).

I point out that this Court has allowed the merits of an argument on appeal to be addressed, although the only indication that the argument was preserved came from an ambiguous comment from the trial court following the acceptance of the defendant’s guilty plea and sentencing. In Glover v. State, 599 So.2d 79, 80 (Ala.Crim.App.1992), prior to addressing the appellant’s argument regarding his detainer, this Court reasoned:

“ ‘By pleading guilty, [a defendant waives] all nonjurisdictional defects, including any violation of the Uniform Mandatory Disposition of Detainers Act.’ Tombrello v. State, 484 So.2d 1190, 1191 (Ala.Cr.App.1985). See also Martin v. State, 579 So.2d 69, 70 (Ala.Cr.App.1991). However, ‘[t]he caselaw of Alabama allows a criminal defendant to plead guilty and, with consent of the trial court, to reserve the right to appeal adverse pretrial rulings.’ Ex parte Hergott, 588 So.2d 911, 915 (Ala.1991). The Attorney General argues that the appellant has failed to preserve any issue for review. Here, there is a question as to whether the trial court ‘dearly assured the appellant that [he] could still present the claimed nonjurisdictional issue ... despite [his] guilty plea.’ German v. State, 492 So.2d 622, 624 (Ala.Cr.App.1985) (emphasis added).
“The first and only indication that this issue was preserved for appeal occurred after the appellant had been adjudged guilty and sentenced.
“ ‘[DEFENSE COUNSEL]: As the Court stated, we filed a motion to dismiss and it was denied. We would like to preserve that issue for appeal. “ ‘THE COURT: I will appoint you to represent him on the appeal. File with the court reporter those papers pertaining to the unlawful detainer.’ R. 24-25.
“The implication from the remarks of the trial judge is that he would permit the appellant to appeal the issue concerning the detainer.”

(Emphasis added.) This Court then went on to hold Glover’s claim to be waived— not because of his untimely statement of preservation to the trial court during the guilty plea colloquy — but rather because he did not timely object at trial when the trial court set the trial date beyond the 180-day limit.

Additionally, in Bailey v. State, 375 So.2d 519 (Ala.Crim.App.1979), we held that where a defendant, pleading guilty to robbery, was assured by the trial court that he could present his speedy-trial-argument on appeal, fairness required the case to be remanded so that the defendant could withdraw his guilty plea or the trial court could conduct a hearing on his speedy-trial-argument. In reaching this conclusion, we reasoned:

“The cases are legion that a guilty plea, if voluntarily and understanding^ made, waives all nonjurisdictional defects in the prior proceedings against the accused. Lancaster v. State, 362 So.2d 271 (Ala.Cr.App.), cert. denied, Ex parte Lancaster, 362 So.2d 272 (Ala.1978); Camp v. State, 359 So.2d 1187 (Ala.Cr.App.1978). A claim of a denial of a speedy trial in violation of the Sixth Amendment is waived by an unqualified plea of guilty. State v. Willis, 42 Ala.App. 414, 166 So.2d 917 (1964); Duncan v. State, 42 Ala.App. 509, 169 So.2d 439 (1964); 57 A.L.R.2d 302, § 13 (1958).
“However[,] it is equally well settled that a guilty plea is invalid unless voluntarily given by a defendant with a full understanding of the possible consequences of the plea. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The subjective beliefs or expectations of a defendant on such matters as to the amount of sentence that will be imposed, or the hope of leniency, unsupported by any promises from the State or indications from the Court, are insufficient to invalidate a guilty plea as unknowing or involuntary. United States v. Maggio, 514 F.2d 80, 88 (5th Cir.1975). It is logical that this same rule should apply to the subjective beliefs of a defendant with regard to what matters can be appealed after pleading guilty. However[J fundamental fairness dictates that such a rule should not apply where the trial court has assured the defendant that he may still present the issue of speedy trial on appeal despite his guilty plea. In the Second Federal Judicial Circuit it is settled law that a point may be preserved for appeal despite the plea of guilty provided the reservation is accepted by the Court with the government’s consent. United States v. Mann, 451 F.2d [346] (2nd Cir.1971). See also Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975).”

375 So.2d at 521.

I recognize that, in Bailey, the defendant brought up his issue for preservation before he entered his guilty plea, as opposed to the case before us where Jefferson brought up his issue for preservation after he entered his guilty plea. However, I think that Bailey, like Glover, involves the same inquiry into the fundamental fairness of the situation. Thus, because I believe that the trial court allowed Jefferson to preserve this issue for appellate review, that is, because Jefferson’s subjective view upon pleading guilty was that this issue was preserved for appellate review, I would not dismiss his appeal, but rather address the merits thereof.

      . After Rodgers pleaded guilty, the following exchange occurred:
      “[Defense counsel]: Your Honor, first off I’d like to preserve for appeal only one issue, the issue of the suppression ruling that was done earlier today, reserve that for appeal. And also I would like to make a request of His Honor to find her indigent and appoint counsel. I assume you want me to file a motion.
      “THE COURT: Yeah, you file a motion.”
      (R. 65-66.)
      The trial court did not affirm that Rodgers's suppression argument would be preserved for appellate review, as it did for Jefferson. In fact, the trial court did not respond to Rodgers’s assertion regarding her desire to preserve the denial of her motion to suppress. Therefore, Rodgers was less likely to have held a subjective belief that her argument had been preserved for appellate review, and I agree with the majority that her argument on appeal was not preserved for appellate review.


author: PER CURIAM. WELLS, J.,

text:
    Daniel Kevin SCHMIDT, Petitioner, v. John E. CRUSOE, etc., Respondent.
    No. SC00-2512.
    Supreme Court of Florida.
    May 1, 2003.
    Rehearing Denied July 14, 2004.
    Susan L. Kelsey and Stephen F. Hanlon of Holland & Knight, LLP, Tallahassee, FL; Robin L. Rosenberg of Holland & Knight, LLP, St. Petersburg, FL; and Wendell T. Locke of Holland & Knight, LLP, Fort Lauderdale, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Robert C. Brannan, Assistant Attorney General, Tallahassee, FL, for Respondent.
   PER CURIAM.

Daniel Kevin Schmidt petitions this Court for a writ of mandamus. We have jurisdiction. See art. V, § 3(b)(8), Fla. Const. For the reasons set out below, we grant the petition and hold that an inmate’s petition for writ of mandamus challenging a loss of gain time is a collateral criminal proceeding and not a civil lawsuit as contemplated by the Prisoner Indigency Statute.

FACTS

Schmidt is serving a criminal sentence and was disciplined for allegedly having lied to prison staff. As punishment, the Department of Corrections forfeited a portion of the gain time that Schmidt had already earned as a reduction to his sentence. Schmidt filed a mandamus petition in the circuit court contesting the forfeiture. The circuit court sought a filing fee or an affidavit of indigency and a printout of Schmidt’s inmate account pursuant to the Prisoner Indigency Statute. See § 57.085, Fla. Stat. (2002). Schmidt responded that he was not subject to these requirements because his petition was not a civil lawsuit, but rather was a “collateral criminal proceeding” exempted under the statute. See § 57.085(10), Fla. Stat. (2002). When the circuit court rejected this contention, Schmidt sought review by a petition for writ of prohibition in the First District Court of Appeal. The district court also invoked the statute and advised Schmidt that his case would be dismissed if compliance or a filing fee was not forthcoming. Schmidt then filed a petition in this Court, and we stayed proceedings pending consideration of the merits of his petition and the responses thereto.

ANALYSIS

I. Jurisdiction

At the time Schmidt filed his petition here, this Court was about to issue Geffken v. Strickler, 778 So.2d 975 (Fla.2001), which held that a writ petition that contests a conviction or sentence is a collateral criminal proceeding and is therefore exempt from the Prisoner Indigency Statute. Schmidt alleged that the First District was about to dismiss his case because he had failed to comply with the Prisoner Indigency Statute. Since it was at least debatable that a writ petition contesting the forfeiture of gain time which results in a longer period of incarceration should also be considered a collateral criminal proceeding and thus exempt from the statute, this Court stayed the pending case in the First District Court of Appeal, requested responses, and held oral argument.

This Court has used its extraordinary writ jurisdiction to address indigency determinations by the district courts in quite a few cases over the years. See, e.g., Geffken v. Strickler, 778 So.2d 975 (Fla.2001). In most cases, the petition filed in this Court was a petition for writ of mandamus and the petitioner’s case had already been dismissed in the district court. In Caldwell v. Estate of McDowell, 507 So.2d 607 (Fla.1987), for example, this Court held that the petitioner had a clear legal right to be deemed insolvent and thus the district court had a duty to reinstate the appeal it had dismissed for failure to pay the filing fee. Later mandamus cases from this Court have also required district courts to reinstate actions dismissed for failure to pay filing fees. See, e.g., Mitchell v. Moore, 786 So.2d 521 (Fla.2001) (instructing district court to reinstate appeal it had dismissed when inmate appellant failed to comply with the copy requirement of the Prisoner Indigency Statute); Quigley v. Butterworth, 708 So.2d 270 (Fla.1998) (instructing district court that had dismissed appeal due to trial court’s denial of indigency to consider action in the district court as an appeal of the trial court’s denial of indigency); McFadden v. Fourth District Court of Appeal, 682 So.2d 1068 (Fla.1996) (instructing district court to reinstate appeal it had dismissed when inmate appellant failed to either pay a filing fee or obtain an order of indigency from the trial court).

In this Court’s prior mandamus cases concerning filing fees, the district court had already dismissed the petitioner’s case and this Court used its mandamus jurisdiction to direct the district court to reinstate the case. This case differs somewhat because we stayed Schmidt’s case in the district court before it was able to dismiss it for failure to comply with the Prisoner Indigency Statute. Thus, even though there is no need to direct the district court to reinstate Schmidt’s case, we must determine whether to direct the district court to consider Schmidt’s indigency without requiring him to comply with the Prisoner Indigency Statute. If the Prisoner Indigency Statute does not apply in this case, Schmidt has a clear legal right and the district court has a clear legal duty to determine his indigency without requiring compliance with the statute. The Prisoner Indigency Statute is still relatively new and questions as to what types of cases it covers continue to arise. The fact that we may need to examine and interpret the statute in order to determine whether there is such a right does not make the right any more or less “clear.”

II. The Merits

The Prisoner Indigency Statute, section 57.085, Florida Statutes (2002), was enacted as part of an act which created or amended several statutory provisions for the purpose of reducing unnecessary or frivolous prisoner filings. See ch. 96-106, Laws of Fla. Before the enactment of the Prisoner Indigency Statute, indigent prisoners, like all other indigent persons, could file civil lawsuits without the payment of a filing fee and other court costs. However, section 57.085, Florida Statutes (2002), the Prisoner Indigency Statute, now provides that while an indigent inmate may still initiate a civil lawsuit without first paying a filing fee, a lien may be placed on the inmate’s account, and if any money is deposited in the account, a portion of the filing fee is deducted each month until the filing fee is paid in full. The statute specifically excludes “criminal” and “collateral criminal proceedings,” see § 57.085(10), Fla. Stat. (2002), from its reach.

Here, Schmidt asserts that regardless of the particular denomination of the petition he filed in the trial court contesting the forfeiture of earned gain time and the calculation of his sentence by the Department of Corrections, it is akin to a traditional habeas corpus action or a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 or 3.800, which have long been deemed hybrid criminal-civil actions and clearly meet the Prisoner Indigency Statute’s and this Court’s definition of a “collateral criminal proceeding.”

Florida’s Prisoner Indigency Statute was fashioned, at least in part, on the federal Prison Litigation Reform Act of 1995 (PLRA). See Pub.L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 (1996) (codified in part at 28 U.S.C. § 1915 (2000)). Similar to Florida’s act, the PLRA’s requirement that prisoners pay at least a partial filing fee applies only to civil lawsuits. As a result, the federal circuits have been grappling for years with virtually the same issue now presented to this Court-that is, whether the filing fee provisions of the federal version of the Prisoner Indigency Statute (the PLRA) should be applied to writ petitions which seek relief traditionally available under habeas corpus or other collateral or postconviction proceedings. Acknowledging the hybrid civil-criminal character of such actions, the federal courts have looked to the legislative history of the PLRA to determine whether Congress meant to restrict inmates from filing such actions, and have found that Congress was principally interested in discouraging civil damage suits involving frivolous challenges to prison conditions. See, e.g., United States v. Simmonds, 111 F.3d 737, 743 (10th Cir.1997) (referencing Senator Dole’s statement in regard to limiting such prison condition suits involving a challenge to the amount of storage space and the infamous “creamy peanut butter” versus “chunky peanut butter” controversy).

The federal decisions have found no indication in the text of the PLRA or its legislative history to indicate that Congress expected its filing fee payment requirements to apply to traditional hybrid civil-criminal, habeas-type actions in which inmates assert an entitlement to gain time and an accelerated release from prison but were not contesting their conditions of confinement. In Santana v. United States, 98 F.3d 752 (3rd Cir.1996), the Third Circuit explained:

The PLRA applies to prisoners who bring a “civil action” or who appeal a judgment in a “civil action or proceeding.” 28 U.S.C. § 1915(a)(2), (b). But the PLRA neither defines “civil action” for purposes of in forma pauperis litigants nor expressly excludes habeas corpus proceedings from its scope.
We do not believe, however, that the meaning of the phrase “civil action” as used in the PLRA is plain. First, habe-as corpus cases are, in effect, hybrid actions whose nature is not adequately captured by the phrase “civil action”
... Congress enacted the PLRA primarily to curtail claims brought by prisoners under 42 U.S.C. § 1983 and the Federal Torts Claims Act, most of which concern prison conditions and many of which are routinely dismissed as legally frivolous. See H.R. CONF. REP. NO. 104-378, 104th Cong., 2d Sess. (1996) (The PLRA “limits the remedies for prison condition lawsuits.”); 141 CONG. REC. S14418 (daily ed. Sept. 27, 1995) (statement of Sen. Hatch) (The PLRA will limit frivolous “prison condition lawsuits,” such as a prisoner who “sued demanding that he be issued Reebok ... instead of Converse brand shoes.”).
Furthermore, when the PLRA is read as a whole, it is apparent that Congress did not intend for the statute to apply to habeas proceedings.

Id. at 754-56. Thus, the federal courts have concluded that claims contesting the computation of criminal sentences should continue to be treated as traditional collateral proceedings under habeas corpus, since they were not the type of civil lawsuits Congress meant to discourage or restrict. See Blair-Bey v. Quick, 151 F.3d 1036, 1039-41 (D.C.Cir.1998) (holding that the PLRA does not apply to any requests for collateral relief under the federal habe-as corpus statutes); Martin v. Bissonette, 118 F.3d 871, 874 (1st Cir.1997) (holding broadly that PLRA does not apply to ha-beas corpus petitions filed by state prisoners); Kincade v. Sparkman, 117 F.3d 949, 950-51 (6th Cir.1997) (same with respect to several of the federal habeas corpus statutes); Smith v. Angelone, 111 F.3d 1126, 1131 (4th Cir.1997) (same with respect to habeas corpus actions); Anderson v. Singletary, 111 F.3d 801, 806 (11th Cir.1997) (same with respect to several of the federal habeas corpus statutes); Naddi v. Hill, 106 F.3d 275, 277 (9th Cir.1997) (same with respect to habeas corpus actions); Santana v. United States, 98 F.3d 752, 756 (3d Cir.1996) (same with respect to actions under several of the federal habeas corpus statutes); Reyes v. Keane, 90 F.3d 676, 678 (2d Cir.1996) (same with respect to habeas corpus actions).

A review of Florida’s legislative history shows that our Legislature had an intent almost identical to that of Congress when enacting its version of the Prisoner Indigency Statute. Section 57.085 was created pursuant to chapter 96-106, Laws of Florida. At the beginning of the act, the Legislature provided a preamble in which it set forth the basis or reasons for the act. The preamble provides, in pertinent part:

WHEREAS, frivolous inmate lawsuits congest civil court dockets and delay the administration of justice for all litigants, and
WHEREAS, each year self-represented indigent inmates in Florida’s jails and prisons file an ever-increasing number of frivolous lawsuits at public expense against public officers and employees, and
WHEREAS, state and local governments spend millions of dollars each year processing, serving, and defending frivolous lawsuits filed by self-represented indigent inmates, and
WHEREAS, the overwhelming majority of civil lawsuits filed by self-represented indigent inmates are frivolous and malicious actions intended to embarrass or harass public officers and employees, and
WHEREAS, under current law frivolous inmate lawsuits are dismissable by the courts only after considerable expenditure of precious taxpayer and judicial resources....

Ch. 96-106, preamble, Laws of Fla. Based upon this express language and a close reading of the legislative scheme, we conclude that the Florida act was enacted for substantially the same reasons Congress acted at the federal level: to discourage the filing of frivolous civil lawsuits, but not to prevent the filing of claims contesting the computation of criminal sentences. Hence, the federal decisions provide a valid framework for our own analysis and decision.

Initially, we note that it is apparent that an action affecting gain time does in fact affect the computation of a criminal defendant’s sentence, because the length of time the inmate will actually spend in prison is directly affected. As noted in many of the federal decisions, such a conclusion is also suggested by those decisions of the United States Supreme Court that have treated gain time issues. Long ago, that Court made clear that “[a] prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judge’s calculation of the sentence to be imposed.” Weaver v. Graham, 450 U.S. 24, 32, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). More recently, in Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), the Court rejected the contention of the Florida Department of Corrections that the retroactive cancellation of overcrowding gain time bore no relationship to the original penalty assigned to the crime. The Supreme Court declared that “[t]o the extent that respondents’ argument rests on the notion that ... gain-time is not ‘in some technical sense part of the sentence,’ this argument is foreclosed by our precedents. [Gain-time] credits are ‘one determinant of petitioner’s prison term ... and ... [his] effective sentence is altered once this determinant is changed.’ ” Id. at 445, 117 S.Ct. 891. It is clear that the Supreme Court has refused to be bound by the variations in terminology used in the various challenges to the computation of an inmate’s sentence. Instead, it has looked to the effect the challenged action had on the amount of time an inmate has to actually spend in prison. We think we should do the same; thus, we conclude that a gain time challenge is analogous to a collateral challenge to a sentence in a criminal proceeding because the end result is the same — the inmate’s time in prison is directly affected.

In the instant case, Schmidt’s loss of gain time effectively lengthened his sentence, since by the Department of Corrections’ action he now has to serve that additional time in prison. Therefore, we agree, in accord with the authorities discussed above, that his gain time challenge should be considered a “collateral criminal proceeding,” and the Prisoner Indigency Statute should not apply. To hold otherwise would result in an unlawful “ ‘chilling’ of a criminal defendant’s right to appeal or otherwise challenge the propriety or constitutionality of the conviction or sentence,” Geffken v. Strickler, 778 So.2d 975, 977 n. 5 (Fla.2001), and raise a serious issue as to criminal defendants’ constitutional rights of access to the courts to challenge their sentences.

CONCLUSION

For the reasons discussed above, we lift the stay we previously granted, grant the petition filed in this Court, and direct the district court to consider Schmidt’s indi-gency without regard to the Prisoner Indi-gency Statute. Because we are confident that the district court will act in a manner consistent with this opinion, we withhold issuance of the writ.

It is so ordered.

ANSTEAD, C.J., PARIENTE, and LEWIS, JJ., and SHAW and HARDING, Senior Justices, concur.

WELLS, J., dissents with an opinion, in which QUINCE, J., concurs.

WELLS, J.,

dissenting.

I dissent because this Court does not have jurisdiction pursuant to article V, section 3(b)(8), Florida Constitution. The present petition in this Court does not present a claim based upon a clear legal right, which is a prerequisite to this Court’s mandamus jurisdiction. Hatten v. State, 561 So.2d 562 (Fla.1990). Nor does this case involve a writ of habeas corpus. The defendant in this proceeding is not contesting his actual loss of gain time — he is contesting whether a court filing fee should be paid.

This case involves an issue of statutory interpretation, as is plainly seen in the majority opinion’s analysis of what section 57.085, Florida Statutes, includes and what it does not include. Legislative history of a statute is obviously not germane to the enforcement of a clear legal right by mandamus. Resorting to legislative history is a tool of statutory construction.

I dissent from the majority’s departure from long-standing and constitutional bases for this jurisdiction. I do not agree with crafting this Court’s writ jurisdiction to reach an issue over which this Court constitutionally only has jurisdiction if there becomes a conflict in statutory construction among the district courts. This Court does not have common law certiorari jurisdiction. Trepal v. State, 754 So.2d 702 (Fla.2000).

QUINCE, J., concurs.

      . Mandamus may be used by a superior tribunal to compel a lower tribunal to perform a clear legal duty. See Hatten v. State, 561 So.2d 562 (Fla.1990). One legal duty of an appellate court is to exercise its jurisdiction once that jurisdiction is properly invoked. See Sky Lake Gardens Recreation, Inc. v. District Court of Appeal, 511 So.2d 293, 294 (Fla.1987) (concluding district court had duty to consider and decide the appeal).

        Thus, for decades, this Court and other Florida courts have used mandamus to reinstate appeals and other types of actions which were erroneously dismissed for lack of jurisdiction. See, e.g., Pino v. District Court of Appeal, 604 So.2d 1232 (Fla.1992) (reinstating appeal); Sky Lake Gardens Recreation, Inc. v. District Court of Appeal, 511 So.2d 293 (Fla.1987) (reinstating appeal); State ex rel. Gaines Constr. Co. v. Pearson, 154 So.2d 833 (Fla.1963) (reinstating appeal); State ex rel. Goethe v. Parks, 131 Fla. 741, 179 So. 780 (1938) (reinstating circuit court action); State ex rel. Baggs v. Frederick, 124 Fla. 290, 168 So. 252 (1936) (reinstating appeal); State ex rel. Hillman v. Hutchins, 118 Fla. 220, 158 So. 716 (1935) (reviewing dismissal of landlord-tenant action); State ex rel. Rembrandt Corp. v. Thomas, 117 Fla. 127, 157 So. 337 (1934) (reviewing trial court’s refusal to take jurisdiction over a cause); State ex rel. Garnett v. Johnson, 112 Fla. 112, 150 So. 239 (1933) (compelling circuit court to reinstatement action improperly dismissed for lack of jurisdiction); State v. Home, 75 Fla. 149, 77 So. 672 (1918); State v. Wills, 49 Fla. 380, 38 So. 289 (1905) (reinstating appeal to circuit court); New Hampshire Ins. Co. v. Calhoun, 341 So.2d 777 (Fla. 2nd DCA 1976) (reviewing inappropriate dismissal of personal injury action), aff'd, 354 So.2d 882 (Fla.1978).

      . Not only did the act amend the statute which regulates pleadings filed by indigents to exclude prisoners and create a new indi-gency statute for prisoner filings, it also created statutory authority permitting the courts, upon a determination that a pleading is frivolous, to send that finding to the prisoner’s institution for disciplinary action, see § 944.279, Fla. Stat. (2002); ch. 96-106, § 5, Laws of Fla. In addition, it amended the gain time forfeiture statute to add that the filing of a pleading found frivolous by a court may also subject a prisoner to gain time forfeiture. See § 944.28(2)(a), Fla. Stat. (2002); ch. 96-106, § 6, Laws of Fla.

      . Schmidt further asserts that when he sought relief in the First District, that action was also a "collateral criminal proceeding,” as is the mandamus action filed in this Court because they are both simply the continuation of Schmidt's attempt to "correct or reduce his sentence.”

      . The instant case before this Court is a mandamus case, and while the federal courts have not discussed mandamus petitions in particular as concerns this question, the reason they have not is that all gain time petitions in the federal courts must be filed as habeas petitions. Therefore, we conclude that, for purposes of deciding whether the federal courts' analysis would be applicable, the fact that this case is a mandamus does not alter the appropriate analysis.

      . Interestingly, for a time there was a split in the federal circuits, with the Seventh Circuit holding that only writ petitions which were "the functional continuation of the criminal prosecution” were exempt from the filing fee provision. See Newlin v. Helman, 123 F.3d 429 (7th Cir.1997); Thurman v. Gramley, 97 F.3d 185 (7th Cir.1996). Recently, however, the Seventh Circuit has receded from those decisions and in Walker v. O’Brien, 216 F.3d 626 (7th Cir.2000), announced that it has joined the rest of the federal circuits in giving a broader reach to the meaning of collateral criminal proceedings.

      . See also Cinnamon Blair, Law Aims To Reduce Prisoner Lawsuits; Top 10 Frivolous Lawsuits, The Ledger, Apr. 28, 1996, at FI (reporting that bill called for by Attorney General Bob Butterworth would allow for the imposition of a filing fee for frivolous lawsuits such as one where inmate complained that he had to watch network (instead of satellite) programs which contained violence and profanity); Phil Davis, Frivolous Inmate-Lawsuits Face Possible Legislative Crackdown, Sun Sentinel, Apr. 26, 1995 (reporting that Representative Lori Edwards was sponsoring legislation that would make inmates pay for their "onslaught” of lawsuits because there was no reason why inmates should not pay when the courthouse was "inaccessible to most middle class people” and that such lawsuits included one where an inmate complained that his pancake ration had been reduced; another in which inmate claimed he should have the right to have sex with his fellow inmates; and another in which inmate complained that a prison guard told him his wife wore a revealing dress); End the Travesties, The Florida Times-Union, Mar. 30, 1996, at A-10 ("Florida inmates have filed suit over such 'abuses’ as getting one bread roll at dinner instead of two, being deprived of a third pancake and [the] blatant disregard for the right to have a salad with lunch.... Fortunately, both houses of the Legislature have unanimously passed a reform bill ... [which] makes it more difficult for inmates to get legal costs waived on indi-gency grounds.”); Michael Griffin, Inmate Lawsuit Bill Ok’d, Sent To Chiles, Orlando Sentinel, Mar. 28, 1996, at D6 (reporting that "enough is enough” and that legislators had authorized new law deterring frivolous lawsuits such as the one where an inmate sued because his dinner was served on paper plates instead of fine china).

      . Because the Prisoner Indigency Statute (section 57.085) does not apply herein, the general indigency statute (section 57.081) does. That means that if Schmidt still seeks to proceed in forma pauperis, he must prove his inability to pay by filing an affidavit with the information required according to section 57.081. See § 57.081(a), Fla. Stat. (2001) (requiring a litigant seeking an indigency waiver of “services of the courts, sheriffs, and clerks” to hie an affidavit "claiming that the applicant is indigent and unable to pay ... providing the details of the applicant’s financial condition, and containing a statement that certifies that no person has been paid or promised any payment of any remuneration by the applicant for services performed on behalf of the applicant in connection with the action or proceeding”).