author: PER CURIAM. SHAW, Judge,

text:
    Eddie TOLIVER, Jr. v. STATE of Alabama.
    CR-02-0665.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    Certiorari Denied Nov. 21, 2003 Alabama Supreme Court 1021697.

      Eddie Toliver, Jr., pro se.
    William H. Pryor, Jr., atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   On Application for Rehearing

PER CURIAM.

The opinion of April 25, 2003, is withdrawn and the following opinion is substituted therefor.

Eddie Toliver, Jr., appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his February 2000 guilty-plea conviction for robbery in the second degree and his resulting sentence, as a habitual offender, of life imprisonment.

Toliver was indicted for one count of burglary in the first degree, one count of robbery in the first degree, and one count of theft of property in the second degree. Pursuant to a plea agreement with the State, Toliver agreed to plead guilty to robbery in the second degree in exchange for the burglary and theft charges being nol-prossed. He did not appeal his conviction. However, on July 18, 2002, he filed the present Rule 32 petition. In his petition, Toliver alleged that the trial court lacked jurisdiction to accept his plea to second-degree robbery because, he said, the indictment charging him with robbery in the first degree did not include an essential element of robbery in the second degree — that he was aided in the robbery by another person — and, thus, the indictment did not encompass the offense of robbery in the second degree. After receiving a response from the State, the circuit court summarily denied the petition on December 3, 2002.

On appeal, Toliver asserts the same claim he presented in his petition. The State argues that this claim is not jurisdictional and that it is time-barred by Rule 32.2(c), Ala.R.Crim.P., because Toliver’s petition was filed approximately five months after the two-year limitations period had expired. However, it is well settled that “a trial court is without authority to accept a plea of guilty to an offense not encompassed by the charge in the indictment.” Edwards v. State, 671 So.2d 129, 130 (Ala.Crim.App.1995). “When the trial court accepts a guilty plea under such circumstances, the court’s judgment is void, because the defendant is convicted of an offense for which the defendant has not been indicted and an essential requisite of jurisdiction is therefore missing.” Id. Contrary to the State’s contention, Toliver’s claim is clearly jurisdictional in nature and, thus, is not subject to the procedural bars in Rule 32.2.

In Ex. parte Cole, 842 So.2d 605 (Ala.2002), the Alabama Supreme Court was faced with a situation identical to the one presented here. Cole had been indicted for first-degree robbery; he pleaded guilty to second-degree robbery. On appeal, Cole argued that the trial court did not have jurisdiction to accept his plea to second-degree robbery because, he said, second-degree robbery was not a lesser-included offense of first-degree robbery as charged in his indictment. Specifically, Cole maintained that second-degree robbery required proof of an element not required for first-degree robbery — that the defendant was aided in the commission of the robbery by another person — and that his indictment for first-degree robbery had been improperly amended to charge second-degree robbery. In holding that Cole’s first-degree-robbery indictment had been improperly amended to charge second-degree robbery, the Alabama Supreme Court stated:

“A valid indictment or complaint, giving the accused notice of the criminal charge against him, is the source of the subject-matter jurisdiction to try a contested criminal case. Ash v. State, 843 So.2d 213 (Ala.2002); see also Ex parte Looney, 797 So.2d [427] at 429 [(Ala.2001) ]; Batey v. State, 755 So.2d 593, 595 (Ala.Crim.App.1999). Absent a valid indictment or complaint, a trial court would lack subject-matter jurisdiction to try, to convict, or to sentence a defendant in a contested criminal case. See Ash v. State, supra; see also Batey v. State, supra. Rule 13.5(a), Ala.R.Crim. P., prohibits any amendment to an indictment that changes the offense or charges a new offense not contemplated in the original indictment. See also Rule 13.2(c), Ala.R.Crim.P. (specifying an offense in the indictment provides notice to the accused that he has been charged with all lesser offenses necessarily included in the charged offense). Rule 13.5(a), in conjunction with Rule 13.2(c), allows an indictment to be amended to charge a lesser offense included within the offense charged in the indictment because the accused is placed on sufficient notice of the charge against which he must defend, and the accused is not being tried for an offense different from the charge intended by the grand jury. See Ash v. State, supra; Ex parte Washington, 571 So.2d 1062, 1063 (Ala. 1990); Woods v. State, 675 So.2d 47, 50 (Ala.Crim.App.1995); Gayden v. State, 38 Ala.App. 39, 42, 80 So.2d 495, 498 (1954).
“Although there is no indication that the prosecutor actually moved the trial court to amend Cole’s original indictment, cases dealing with entry of a guilty plea to an offense other than the offense charged in the indictment sometimes describe the process as ‘amending’ the indictment. For example, in Fleming v. State, 814 So.2d 310 (Ala.Crim.App.2001), and Wingard v. State, 821 So.2d 240 (Ala.Crim.App.2001), reference to the amendment appears within quotation marks, indicating that no formal amendment has occurred but that the process is equivalent to amending the indictment. Regardless of whether by formal amendment or by implicit amendment, the entry of a plea to an offense different than the one charged in the indictment must not violate Rules 13.5(a) and 13.2(c), which, as previously noted, combine to permit only those amendments that charge a lesser-included offense. Furthermore, the defendant cannot consent to an amendment that effectively charges an offense not contemplated by the indictment. See Hugh Maddox, Alabama Rules of Criminal Procedure § 13.5 (3d ed.1999); see also Wingard v. State, supra; Murray v. State, 814 So.2d 1006 (Ala.Crim.App.2001); Green v. State, 619 So.2d 952, 953 (Ala.Crim.App.1993); Ross v. State, 529 So.2d 1074,1077 (Ala.Crim.App.1988).
“If at [Cole’s] guilty-plea proceedings, the indictment was ‘amended,’ the State was required to comply with Rules 13.5(a) and 13.2(c) and to confíne its ‘amendment’ to lesser offenses necessarily included within the offense of first-degree robbery. In this respect, a defendant charged with first-degree robbery by an indictment that describes the defendant’s conduct as occurring in the presence of another aiding him could plead guilty to second-degree robbery as a lesser-included offense, because robbery in the second degree requires the use of force or the threatened use of force while the defendant is ‘aided by another person actually present.’ § 13A-8^42, Ala.Code 1975. Under those circumstances, where the original indictment charging first-degree robbery alleged the facts essential to the lesser-included offense of second-degree robbery, any insufficiency in the factual basis of a guilty plea to the lesser-included offense could not be subsequently attacked for lack of subject-matter jurisdiction.
“The indictment by which Cole was charged alleged only facts describing a first-degree robbery in which he acted alone....
“When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant^ — an essential element of the offense of second-degree robbery — the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea. Had the trial court obtained Cole’s consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element. An indictment so amended, permitting a defendant to plead guilty to second-degree robbery, would not run afoul of Rule 13.5(a). That, however, did not occur here. To treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment. See Murray v. State, supra; Wingard v. State, supra; Green v. State, supra; and Ross v. State, supra.
“Based upon the foregoing, we must reverse the judgment of the Court of Criminal Appeals as to Cole’s conviction for second-degree robbery. Cole’s conviction for first-degree assault, however, is unchallenged and therefore remains valid. Because the indictment charging him with first-degree robbery was improperly amended to charge second-degree robbery, Cole’s original indictment charging first-degree robbery remains valid. The State may try Cole on this charge, or if the factual circumstances would support a conviction for another degree of robbery, the State may rein-diet Cole for the proper offense. See Williams v. State, 823 So.2d 1285 (Ala.Crim.App.2001); Pless v. State, 805 So.2d 778 (Ala.Crim.App.2001); Marks v. State, 791 So.2d 1062, 1064 (Ala.Crim.App.2000).”

842 So.2d at 607-09 (emphasis added).

It is well settled that “[rjobbery in the second degree is not a lesser included offense of robbery in the first degree, unless the defendant is aided in the commission of the robbery by another person actually present and a participant in the robbery is armed with a deadly weapon or dangerous instrument or causes physical injury to another.” Howard v. State, 710 So.2d 456, 458 (Ala.Crim.App.1996), remanded on other grounds, 710 So.2d 460 (Ala.1997). We believe that the point of Ex parte Cole was that the fact that the defendant was aided in the commission of the robbery by another person must be included within the first-degree-robbery charge itself for second-degree robbery to be a lesser-included offense of first-degree robbery. In other words, if the first-degree-robbery charge does not include the fact that the defendant was aided in the robbery by another person, then second-degree robbery is not a lesser-included offense of first-degree robbery, and a trial court would not have jurisdiction to accept a plea to second-degree robbery because that offense would not be encompassed within the first-degree robbery indictment. Of course, as the Supreme Court noted in Ex parte Cole, because the offense of robbery in the first degree is broad enough to encompass the fact that the defendant was aided in the robbery by another person, amending an indictment charging first-degree robbery to include that fact would not violate Rule 13.5(a), Ala.R.Crim.P. However, amending an indictment charging first-degree robbery that did not include the fact that the defendant was aided in the robbery by another person to charge second-degree robbery — either by a formal and express amendment to the indictment or by the entry of a plea to second-degree robbery — would violate Rule 13.5(a) because, under those circumstances, second-degree robbery would not be a lesser-included offense of first-degree robbery.

This Court has, on several occasions, attempted to follow the Supreme Court’s opinion in Ex parte Cole. See Collins v. State, 871 So.2d 860 (Ala.Crim.App.2003); Pritchett v. State, 870 So.2d 757, 760 (Ala.Crim.App.2003)(opinion on return to remand); Goetzman v. State, 844 So.2d 1289 (Ala.Crim.App.2002); Boykin v. State, 853 So.2d 1031 (Ala.Crim.App.2002); and Copeland v. State, 841 So.2d 302 (Ala.Crim.App.2002). All of these cases involved appeals from the denial of Rule 32 petitions, just as this one does, and in each case this Court initially remanded the case for the circuit court to determine whether the first-degree-robbery indictment had been amended with the defendant’s consent to add the fact that another person aided the defendant in the robbery because we could not determine from the record whether the indictment had been so amended.

In both Boykin and Copeland, the circuit court, on remand, vacated the defendant’s conviction for robbery in the second degree, finding that the indictment charging first-degree robbery had not been amended with the defendant’s consent to add the fact that another person had aided the defendant in the robbery. In Pritch-ett, the circuit court upheld Pritchett’s conviction for robbery in the second degree, finding that, by virtue of entering a guilty plea, Pritchett had consented to the indictment’s being amended, but this Court reversed the circuit court’s judgment, stating:

“On return to remand, the circuit court has attached copies of the two indictments. The two indictments read as follows:
“ ‘[Pritchett] did, in the course of committing a theft of Four Hundred Sixty Three Dollars and Twenty-Two Cents of the lawful currency of the United States of America, a more particular description and denomination of which is to the grand jury otherwise unknown, the property of Paul Shrove, use force against the person of Paul Shrove, or against the person of another present, with intent to overcome his physical resistance or physical power of resistance, while the said [Pritchett] was armed with a deadly weapon or dangerous instrument, to wit: a shotgun, in violation of Section 13A-8-41 of the Alabama Criminal Code.’
“ ‘[Pritchett] did, in the course of committing a theft of Four Hundred Fifty One Dollars of the lawful currency of the United States of America, a more particular description and denomination of which is to the grand jury otherwise unknown,' the property of Robert Woods, threaten the imminent use of force against the person of Robert Woods, with the intent to compel acquiescence to the taking of or escaping with the property, while the said [Pritchett] was armed with a deadly weapon or dangerous instrument, to wit: a sawed-off shotgun, in violation of Section 13A-8-41 of the Alabama Criminal Code.’
“Thus, the indictments do not contain any factual allegations that Pritchett was aided in the commission of the robbery by another person actually present. The circuit court has also attached cop-
ies of grand jury testimony indicating that Pritchett was aided during the robbery by another person actually present, an affidavit from the district attorney attesting to the fact that the copies of the grand jury testimony are true and accurate copies, and a copy of the guilty plea agreement. The circuit court found, in pertinent part:
“ ‘[Although the State did not formally amend the ... indictments prior to the entry of the said guilty pleas, Petitioner, essentially, consented to amend the said indictments when he entered his plea of guilty to Robbery in the Second Degree. Furthermore, at the time Petitioner entered his plea of guilty, the State would have made a statement of facts mirroring the information contained in EXHIBITS “B-l” through “B-5” [the grand jury testimony].
“ ‘In consideration of the foregoing the undersigned finds that facts exist, before the Court, sufficient to support Petitioner’s pleas of guilty to Second Degree Robbery. The Court further finds that the Order [denying the Rule 32 petition], issued by the undersigned on August 28, 2002, is not due to be vacated, and should remain in full force and effect.’
“(Order on return to remand.)
“While we sympathize with the circuit court and its reluctance to vacate convictions nearly 20 years old when the defendant clearly knew of the charges against him and pleaded guilty in his best interest to a lesser charge, it, and we, cannot circumvent clear Alabama Supreme Court precedent....
“As in Cole, both of the first-degree robbery indictments in this case ‘fail[ ] to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery....’ Cole, 842 So.2d at 609.
“Therefore, we remand this cause for the circuit court to vacate its order of August 28, 2002, and grant the petitioner relief. The pleas are not valid, and it shall vacate the pleas.”

870 So.2d at 760 (opinion on return to remand).

In Goetzman, the circuit court also upheld Goetzman’s second-degree-robbery conviction, finding that Goetzman had expressly consented to the first-degree-robbery indictment’s being amended to charge second-degree robbery and that this express consent distinguished the case from Ex parte Cole. However, on return to remand, this Court affirmed the circuit court’s order. We now believe that that affirmance was in error because, as noted above, amending a first-degree-robbery charge that does not include the fact that the defendant was aided in the robbery by another person to charge second-degree robbery is improper. We have examined the record in Goetzman as well as the record in Ex parte Cole; we can find no material difference between the two. In Goetzman, as the circuit court noted in its order on remand, the case action summary indicated that the parties had expressly agreed to amend the first-degree-robbery indictment (which did not include the fact that Goetzman was aided in the robbery by another person) to charge second-degree robbery. However, in Ex parte Cole, the case action summary also indicated that the parties had expressly agreed to amend the first-degree-robbery indictment (which did not include the fact that the defendant was aided in the robbery by another person) to charge second-degree robbery. Therefore, our unpublished memorandum affirming the circuit court’s order in Goetz-man was erroneous.

On rehearing, the State asks this Court to follow the above line of cases, including Goetzman, and to remand this case for the circuit court to determine whether the first-degree-robbery indictment was amended with Toliver’s consent to add the fact that another person aided Toliver in the robbery. However, based on our interpretation of Ex parte Cole, we find it unnecessary to remand this case because it is clear from the record before us that the trial court did not have jurisdiction to accept Toliver’s guilty plea to second-degree robbery based on the indictment charging him with first-degree robbery.

First, Toliver attached to his petition a copy of his indictment, which charged, in pertinent part:

“The grand jury of said county further charge that before the finding of this indictment, Eddie Toliver, Jr., alias, Eddie Toliber, alias, Eddie Tolliver, Jr., alias, Eddie Alluse, alias, Eddie Tolliver, whose name is to the grand jury otherwise unknown, did, in the course of committing a theft of one television set, one video cassette recorder and one watch, the property of Clinton Johnson, use force or threaten the imminent use of force against the person of Clinton Johnson or another person present, with the intent to overcome his physical resistance or physical power of resistance or to compel acquiescence to the taking of or escaping with the property, while the said Eddie Toliver, Jr., alias Eddie Toli-ber, alias Eddie Tolliver, Jr., alias Eddie Alluse, alias Eddie Tolliver, was armed with a deadly weapon or dangerous instrument, to-wit: a pistol, in violation of Section 13A-8-41 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.”

(C. 72.) Toliver’s indictment “fails to set forth facts from which one might conclude that [Toliver] was aided in the robbery by another participant — an essential element of the offense of second-degree robbery.” Ex parte Cole, 842 So.2d at 609. Although the transcript of the guilty-plea proceedings, a copy of which the circuit court attached to its order summarily denying Toliver’s Rule 32 petition, reflects that the prosecutor’s factual basis for the plea included the fact that Toliver had been aided by “another man” in the robbery, this fact was not included in the indictment. (C. 19.)

Second, contrary to the State’s contention on rehearing, the record reflects that the indictment charging first-degree robbery was never amended to add the fact that another person aided Toliver in the robbery. The transcript of the guilty-plea proceedings reflects that the first-degree-robbery charge was never amended during the proceedings to add the fact that Toliver was aided in the robbery by another participant. Although the case action summary indicates that Toliver pleaded guilty to “an indictment as amended by agreement” (C. 36), the written plea agreement, which Toliver attached to his petition, indicates that the parties agreed to amend the indictment so as to change the first-degree-robbery charge to second-degree robbery. It is apparent from the record that the amendment referred to in the case action summary was the amendment from first-degree robbery to second-degree robbery, not an amendment to add to the indictment charging first-degree robbery the fact that Toliver had been aided in the robbery by another person. However, the amendment from first-degree robbery to second-degree robbery was improper because the fact that the defendant was aided in the robbery by another person was not included in the first-degree-robbery charge; thus, second-degree robbery was not a lesser-included offense of first-degree robbery as charged in Toliver’s indictment. “ ‘An indictment cannot be amended to charge an offense that was not encompassed in the original indictment.’ ” Hamilton v. State, 828 So.2d 957, 960 (Ala.Crim.App.2002), quoting Hall v. State, 655 So.2d 51, 52 (Ala.Crim.App.1995).

To treat the proceedings in this case as if the original first-degree-robbery charge included the additional fact that Toliver was aided in the robbery by another person just because Toliver entered into a plea agreement to amend the first-degree-robbery charge to charge second-degree robbery and pleaded guilty to the amended indictment would disregard the settled principle that one cannot consent to the improper amendment of an indictment. See Ex parte Cole, 842 So.2d at 609.

Because the indictment in this case did not include the fact that Toliver was aided in the robbery by another person and because the record before us shows that the first-degree-robbery charge was never amended to include that fact before the indictment was improperly amended to charge second-degree robbery (pursuant to the plea agreement) and Toliver pleaded guilty to second-degree robbery, the trial court lacked jurisdiction to accept Toliver’s plea to second-degree robbery based on the first-degree-robbery indictment in this case. Therefore, the circuit court erred in denying Toliver’s Rule 32 petition.

Based on the foregoing, the judgment of the circuit court summarily denying Toliver’s Rule 32 petition is reversed and this cause remanded for the circuit court to vacate Toliver’s conviction for second-degree robbery.

OPINION OF APRIL 25, 2003, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; REVERSED AND REMANDED.

McMILLAN, P.J., and COBB and BASCHAB, JJ., concur. SHAW, J., concurs specially, with opinion. WISE, J., concurs in the result.

SHAW, Judge,

concurring specially.

I concur in the per curiam opinion because it is consistent with my understanding of Ex parte Cole, 842 So.2d 605 (Ala. 2002). The conceptual difficulty that trial courts and this Court are apparently experiencing in consistently applying Cole stems, I believe, from the natural inclination to believe that by virtue of the entry of the guilty plea and the factual basis provided for that plea the parties implicitly agreed to amend an indictment charging only first-degree robbery to add the fact that the defendant was aided in the commission of the robbery by another. However, it appears to me, and, indeed, this Court has held, that the Supreme Court in Cole foreclosed that possibility. See Pritchett v. State, 870 So.2d 757 (Ala.Crim.App.2003)(opinion on return to remand). Specifically, the Supreme Court in Cole stated:

“Regardless of whether by formal amendment or by implicit amendment, the entry of a plea to an offense different than the one charged in the indictment must not violate Rules 13.5(a) and 13.2(c), which, as previously noted, combine to permit only those amendments that charge a lesser-included offense. Furthermore, the defendant cannot consent to an amendment that effectively charges an offense not contemplated by the indictment. See Hugh Maddox, Alabama Rules of Criminal Procedure § 13.5 (3d ed.1999); see also Wingard v. State, supra; Murray v. State, 814 So.2d 1006 (Ala.Crim.App.2001); Green v. State, 619 So.2d 952, 953 (Ala.Crim.App.1993); Ross v. State, 529 So.2d 1074, 1077 (Ala.Crim.App.1988).
“... Had the trial court obtained Cole’s consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element. An indictment so amended, permitting a defendant to plead guilty to second-degree robbery, would not run afoul of Rule 13.5(a). That, however, did not occur here. To treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment. See Murray v. State, supra; Wingard v. State, supra; Green v. State, supra; and Ross v. State, supra.”

842 So.2d at 608-09. (Emphasis added.)

If this Court’s interpretation of Cole is incorrect, I urge the Supreme Court to clarify its holding at its earliest opportunity-

      . Toliver also asserts an additional claim that was not presented in his petition. However, "[a]n appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.” Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997). Because Toliver did not in-elude this claim in his petition, it is not properly before this Court for review.

      . Rule 32.2(c) was amended effective August 1, 2002, to provide for a one-year period of limitations.

      . The case action summary stated: "By agreement of all parties, the D.A., defense attorney, and the defendant, the indictment is amended to read Robbery 2°." (Goetzman Record, C. 5.)

      . The case action summary in Ex parte Cole indicated that the parties had agreed to amend the indictment by "adding" a second count to the indictment to charge second-degree robbery; in contrast, the case action summary in Goetzman indicated that the parties had agreed to amend the first-degree-robbery charge itself to charge second-degree robbery, rather than to "add” a second-degree-robbery count to the indictment. This is not a material difference between the cases.


source: Caselaw Access Project

author: CANTERO, J. PARIENTE, J., QUINCE, J.,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Morris HARRIS, Respondent. State of Florida, Petitioner, v. Donald Gentes, Respondent.
    Nos. SC02-2172, SC02-2440.
    Supreme Court of Florida.
    May 13, 2004.
    Rehearing Denied Aug. 30, 2004.

      Charles J. Crist, Jr., Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, FL; and Richard L. Polin, Senior Assistant Attorney General, Miami, FL, for Petitioner.
    Nancy A. Daniels, Public Defender, and Robert S. Friedman, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondents.
   CANTERO, J.

In these consolidated cases we consider whether the State breaches a plea agreement under which a defendant is sentenced to a term of imprisonment followed by probation, with no mention of civil commitment, when the State later initiates civil commitment proceedings under the Jimmy Ryce Act. The First District Court of Appeal held that it did, but certified the following questions of great public importance:

MAY THE STATE INITIATE DISCRETIONARY CIVIL COMMITMENT PROCEEDINGS UNDER THE RYCE ACT (PART V OF CHAPTER 394, FLORIDA STATUTES) WHERE, BY SEEKING CIVIL COMMITMENT, THE STATE WOULD VIOLATE THE TERMS OF A PLEA AGREEMENT PREVIOUSLY ENTERED INTO WITH THE DEFENDANT?
IS A PLEA AGREEMENT FOR PRISON TIME FOLLOWED BY PROBATION VIOLATED WHEN THE STATE LATER INITIATES DISCRETIONARY CIVIL COMMITMENT PROCEEDINGS UNDER THE JIMMY RYCE ACT (PART V OF CHAPTER 394, FLORIDA STATUTES)?
IN THE CIRCUMSTANCE DESCRIBED IN THE FIRST QUESTION, IS THE STATE BARRED BY EQUITABLE ESTOPPEL FROM SEEKING CIVIL COMMITMENT?

Harris v. State, 879 So.2d 1223, 1228 (Fla. 1st DCA 2002), reh’g denied, 879 So.2d at 1237 (Fla. 1st DCA Oct.4, 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We decline to answer the first question because it assumes what we need to decide: whether the State breached the plea agreement. We answer only the latter two questions. Based on our decision in Murray v. Regier, 872 So.2d 217 (Fla.2002), we answer those questions in the negative and quash the decision below.

I. FACTS

These consolidated eases involve similar facts, which we detail below. In both cases, the defendants executed plea agreements under which they were sentenced to a term of imprisonment followed by a period of probation. Neither agreement mentioned the possibility of involuntary civil commitment. The plea agreements were executed in 1995 (Harris) and 1993 (Gentes), before the Ryce Act became law, and therefore neither party could have contemplated the possibility of civil commitment. The Ryce Act became effective as of January 1, 1999. See Ch. 98-64, § 24, at 455, Laws of Fla. Subsequently, before their terms of incarceration expired, the State initiated civil commitment proceedings against them under the Ryce Act. The respondents claim that by doing so, the State has violated their plea agreements.

A. State v. Harris

In 1995, Morris Harris entered a plea of nolo contendere and was adjudicated guilty of two counts of lewd and lascivious assault on a child under sixteen years of age. He was sentenced to fifteen years in prison, with eight years of the sentence suspended for probation with sexual offender counseling. On May 27, 1999, four days before Harris’s tentative release date from prison, the State filed a petition seeking civil commitment under the Ryce Act. See §§ 394.910-.931, Fla. Stat. (1999). Harris then filed a motion to enforce the plea agreement and sentence in the 1995 criminal case, arguing that the involuntary civil commitment proceedings violated the plea agreement. The trial court denied the motion, finding that the State had not violated the plea agreement because (1) the Ryce Act had not been enacted at the time of the plea, (2) the civil commitment was an unforeseen, collateral consequence of the plea, and (3) Harris was serving probation while awaiting trial in the civil proceeding. Harris later filed a motion to dismiss the commitment petition, arguing that as applied to him, the Ryce Act constituted an ex post facto law and violated his right to due process. The trial court denied this motion as well. After a non-jury trial, the trial court found by clear and convincing evidence that Harris met the criteria for civil commitment.

Harris appealed the verdict and the denial of the motion to dismiss, and the cases were consolidated. The First District reversed and remanded on both appeals, finding that “the state breached its plea agreement to allow Harris the privilege of seeking treatment as a sexual offender during the probationary portion of his sentence by seeking civil commitment shortly before he had completed the incareerative portion of his sentence.” Harris, 879 So.2d at 1228. The First District also certified the first question stated above. Id.

In denying the State’s motions for rehearing and rehearing en banc, the First District issued another opinion addressing Harris’s probationary status. Evidently, the State had represented at oral argument that Harris was not on probation while civilly committed, and would not begin serving probation until he successfully completed treatment and was released. 879 So.2d at 1235. On motion for rehearing, the State claimed that its concession “was ill-advised and in error.” The State argued that Harris was receiving sexual offender treatment during the probationary period of his sentence, and thus, the State had honored the plea agreement. The First District disagreed that Harris was then currently on active probation while confined under the Ryce Act. Moreover, “[e]ven if it could be said that [Harris] is currently on active probation while in the custody of DCFS, this would raise a double jeopardy issue, because of the change in probationary conditions his internment represents.” Id. The First District then certified the second and third questions stated above. Id. at 1236.

B. State v. Gentes

In 1993, Donald Gentes entered no contest pleas to five counts of lewd and lascivious assault and was sentenced to ten years in prison on two of the counts, the sentences to be served consecutively, to fifteen years’ probation on two others (consecutive), and fifteen years’ probation (concurrent with the other probation charges) on the final count. On May 14, 1999, an order of probation was entered, nunc pro tunc to October 22, 1993.

Before Gentes’s release from prison, the State filed a petition for civil commitment. Gentes filed a motion to enforce the plea agreement and sentence, alleging that the State’s petition for civil commitment breached the plea agreement because it placed him in a “prison-like setting.” The trial court denied the motion.

Gentes appealed, and the First District reversed based on its prior decision in Hams. See Gentes v. State, 828 So.2d 1051 (Fla. 1st DCA 2002). The First District also certified the same questions as certified in Harris, but noted that only the two questions certified in the opinion on motions for rehearing need be considered because the question in the original Harris opinion “jumps over the central issue in the case by assuming the plea agreement was breached when the State sought civil commitment.” Gentes, 828 So.2d at 1053. Although obligated to follow Harris, the panel in Gentes expressed its reservations about that decision. It noted that “the Harris holding may not be in concert with the apparent consensus of other states finding civil commitment of sexually violent predators, under similar state laws, does not violate the terms of a plea agreement.” Gentes, at 1052 (citing several cases from other states). The court also noted that “our sister court has previously held that subsequent designation as a sexual violent predator under Florida law does not violate a plea agreement.” Id. (citing Collie v. State, 710 So.2d 1000 (Fla. 2d DCA 1998)).

We now review this issue in these consolidated review proceedings.

II. DISCUSSION

The First District certified three questions to us, two of which we answer: (A) whether the State violates a plea agreement that sentences a defendant to a term of imprisonment followed by probation by initiating civil commitment proceedings under the Jimmy Ryce Act; and (B) whether, under such circumstances, principles of equitable estoppel prohibit the State from initiating civil commitment proceedings. We discuss each issue in turn.

A. Do civil commitment proceedings violate a prior plea agreement that did not mention such proceedings?

Respondents first allege that by later initiating civil commitment proceedings in each case, the State breached the plea agreements. The First District agreed. We do not. Instead, we hold that our recent decision in Murray v. Regier, 872 So.2d 217 (Fla. 2002), answers the question. The First District did not have the benefit of that decision because it was pending review in this Court at the time. See Murray v. Kearney, 770 So.2d 273 (Fla. 4th DCA 2000) (on rehearing), quashed sub nom. Murray v. Regier, 872 So.2d 217 (Fla.2002).

The Ryce Act provides for the involuntary civil commitment of persons who are convicted of sexual offenses and found to be sexually violent predators. See generally Westerheide v. State, 831 So.2d 93 (Fla.2002). To commit a person under the Ryce Act, the State must prove by clear and convincing evidence that the person has been convicted of a sexually violent offense and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment. See §§ 394.912(10), 394.917. Therefore, although a prior criminal conviction of a sexually violent offense is a necessary condition for commitment, it is not sufficient in itself. As we emphasized in Westerheide, “involuntary commitment under the Ryce Act is based upon an individual’s current mental state that makes it likely the person will engage in acts of sexual violence.” 831 So.2d at 100 (plurality opinion). We also emphasized that involuntary civil commitments are civil in nature, not criminal: “[T]he affirmative restraint of ‘a small but extremely dangerous number of sexually violent predators’ who ‘pose [a risk] to society’ because they are ‘likely to engage in criminal, sexually violent behavior,’ § 394.910, Fla. Stat. (2001), is a ‘classic example of nonpunitive detention.’ ” Westerheide, 831 So.2d at 100 (quoting Kansas v. Hendricks, 521 U.S. 346, 363, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)).

In Murray, we considered whether the State’s initiation of civil commitment proceedings violated a prior plea agreement that did not mention the possibility of such proceedings. We held that “any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment.” 872 So.2d at 224. As in these cases, the petitioner had executed a plea agreement under which he was sentenced to a period of incarceration followed by probation. Before he was released, the State filed civil commitment proceedings under the Ryce Act. 872 So.2d at 219. Murray then filed a motion for specific performance of his plea agreement, arguing that he should be released to serve the agreed-upon probation. The case presented unique jurisdictional issues and bounced back and forth between two district courts of appeal. When the case reached this Court, we resolved the jurisdictional issue. We then addressed the merits of Murray’s petition. We held that the petitioner was not entitled to relief because

[t]he plea agreement was part of a criminal proceeding against Murray whereas the commitment order was entered in a civil proceeding based upon clinical evaluations of Murray’s present state.... Thus, Murray’s involuntary commitment cannot be considered continued punishment for his criminal offense, but was based upon clinical evaluations of his present state. While Murray’s previous conviction of a sexually violent offense satisfies one of the statutory criteria of a sexually violent predator, the other requirement is not related to his previous conviction.

872 So.2d at 223 (emphasis added). Most importantly, we then concluded

that any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment. Consequently, Murray’s constitutional claim is without merit and he was not entitled to release from detention on that basis.

872 So.2d at 224 (emphasis added).

The respondents here argue that Murray does not apply to their cases because it arose from a habeas petition and involved unique jurisdictional issues. Neither the procedural history of that case, however, nor the jurisdictional issues involved affected our holding on the merits. Since our decision in Murray, several district courts of appeal, including the court that decided Harris and Gentes, have recognized its holding and have applied it outside the context of habeas corpus. See State v. Riddle, 862 So.2d 802 (Fla. 4th DCA 2003); State v. McFarland, 28 Fla. L. Weekly D2298, — So.2d -—, 2003 WL 22259634 (Fla. 1st DCA Oct.3, 2003); State v. Klein, 851 So.2d 274 (Fla. 5th DCA 2003); Marsh v. State, 849 So.2d 1178, 1181 (Fla. 3d DCA 2003); Krischer v. Ford, 847 So.2d 1050, 1051 (Fla. 4th DCA 2003); Sublett v. State, 842 So.2d 314, 315 (Fla. 5th DCA 2003); Sandillo v. State, 842 So.2d 1018, 1019 (Fla. 5th DCA 2003); Satz v. Runion, 838 So.2d 689, 689-90 (Fla. 4th DCA 2003); Krischer v. Faris, 838 So.2d 600, 602-03 (Fla. 4th DCA 2003); Garcia v. State, 847 So.2d 980, 980 (Fla. 4th DCA 2003). No court has distinguished Murray. In fact, by applying Murray instead of Harris, the First District in McFarland implicitly acknowledged that Murray has disapproved Harris. See 28 Fla. L. Weekly at D2298, — So.2d at-. We agree.

B. Does the doctrine of equitable es-toppel prohibit the State from initiating civil commitment proceedings?

The second question we answer is whether under these circumstances equitable estoppel bars the State from seeking civil commitment. The First District found that “this is a classic case for the application of the doctrine of equitable es-toppel.” Harris, 879 So.2d at 1227.

The elements of equitable estoppel are (1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. See State Dep’t of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981).

The First District found that elements one and two “are easily satisfied in that the state clearly represented to Harris the sentence he would receive in exchange for his plea, and he relied on the representation.” Harris, 879 So.2d at 1227. As to the third element, the First District concluded that “the state subsequently changed its position in a manner detrimental to Harris by filing the civil commitment action against him.” Id. The court noted that the Legislature’s subsequent passage of the Ryce Act did not render the State’s future compliance with the agreement impossible, in part because the State is given discretion whether to file a civil commitment action. In other words, because the State “was clearly under no compulsion to file a petition,” the State “violated its own solemn agreement that appellant serve no more than a split sentence of incarceration and probation.” Id.

The First District’s reasoning assumes that civil commitment under the Ryce Act is punishment. We already have held that it is not. See Westerheide, 831 So.2d at 98-104; see also § 394.910, Fla. Stat. (2000). Thus, the State, by initiating civil commitment actions against respondents, did not “change [its] position detrimental to the party claiming estoppel.” The plea agreements are still completely in effect, notwithstanding the civil commitment. Moreover, because respondents Harris and Gentes executed their plea agreements before the Ryce Act was enacted, neither party could have contemplated the possibility of involuntary civil commitment. Therefore, we agree with the dissent’s position below that “[t]he plea agreement in the criminal proceeding is a separate event from the civil commitment that was not contemplated by the parties. Therefore, Appellant could not have relied on any representations by the State to his detriment regarding civil commitment, and the State has not changed its position from the plea agreement.” Harris, 879 So.2d at 1235 (Polston, J., dissenting). We also note that “[a]s a general rule, equitable estoppel will be applied against the state only in rare instances and under exceptional circumstances.” Anderson, 403 So.2d at 400. This is not one of them.

III. CONCLUSION

We apply Murray v. Regier and hold that the State does not violate a plea agreement for prison time followed by probation when it later initiates discretionary civil commitment proceedings under the Jimmy Ryce Act. We answer the second and third certified questions in the negative, quash the decisions in Harris and Gentes, and remand these cases for proceedings consistent with this opinion.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS and BELL, JJ., concur.

PARIENTE, J., concurs specially with an opinion, in which ANSTEAD, C.J., concurs.

QUINCE, J., concurs in result only with an opinion.

PARIENTE, J.,

specially concurring.

The defendants in these cases are not seeking to withdraw their pleas on grounds that the pleas were involuntarily entered. Rather, they seek relief upon the theories of specific performance and equitable estoppel. Because the enactment of the Jimmy Ryce Act (otherwise known as the Sexually Violent Predators Act) occurred subsequent to the plea agreements in these cases, I agree with the majority that relief based on these theories should not be granted. I also agree with the majority that applying Murray v. Regier, 872 So.2d at 217 (Fla. Dec. 5, 2002), to the instant cases is appropriate because the defendant in Murray raised the same claim for relief as Harris and Gentes— specific performance.

Further, I concur in the referral to the Criminal Procedure Rules Committee in order to include as part of the standard plea colloquy a requirement that trial courts inform defendants of the potential for indefinite civil commitment under the Jimmy Ryce Act. In the interim, I urge trial courts, if they do not already do so, to immediately begin informing defendants who plead guilty to a sexually violent offense of the State’s right to seek civil commitment. Regardless of the fact that sexual predator acts are labeled by courts as civil commitment proceedings, the actual effect of these acts is to confine defendants who have completed their criminal sentences to an indefinite term of commitment.

In this case, defendant Harris was to be released from prison in May of 1999 after serving a four-year sentence as the result of a plea of nolo contendere in 1995 to two counts of lewd and lascivious assault on a child under sixteen years of age. Five years later, Harris still remains committed pursuant to the Jimmy Ryce Act.

The reality is that the confinement is against the defendant’s will and the confinement is in a prison-like environment. As Justice Breyer observed in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), discussing Kansas’s Sexually Violent Predators Act, which is substantially similar to Florida’s Sexually Violent Predators Act:

Certain resemblances between the Act’s “civil commitment” and traditional criminal punishments are obvious. Like criminal imprisonment, the Act’s civil commitment amounts to “secure” confinement and “incarceration against one’s will.” In addition, a basic objective of the Act is incapacitation, which, as Blackstone said in describing an objective of criminal law, is to “depriv[e] the party injuring of the power to do future mischief.” ...
Moreover, the Act, like criminal punishment, imposes its confinement (or sanction) only upon an individual who has previously committed a criminal offense. And the Act imposes that confinement through the use of persons (county prosecutors), procedural guarantees (trial by jury, assistance of counsel, psychiatric evaluations), and standards (“beyond a reasonable doubt”) traditionally associated with the criminal law.

521 U.S. at 379-80,117 S.Ct. 2072 (Breyer, J., dissenting) (citations omitted) (alteration in original).

In light of the consequences of civil commitment, defendants who enter pleas of guilty or nolo contendere to sexually violent offenses subsequent to the passage of the Jimmy Ryce Act should be advised of the possibility that the State may seek their continued confinement after the term of imprisonment has ended. As the New Jersey Supreme Court recently observed, “when the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform [the] defendant of that possible consequence.” State v. Bellamy, 178 N.J. 127, 835 A.2d 1231, 1238 (2003).

Finally, although I agree that Harris and Gentes are not entitled to specific performance, I reach no conclusion as to whether the failure to advise a defendant of the consequence of indefinite confinement under the Jimmy Ryce Act may render a plea involuntary and thus subject to withdrawal under Florida Rule of Criminal Procedure 3.170(i). However, once a trial court includes in the plea colloquy the potential for indefinite civil commitment, any claim of involuntariness on that basis will be eliminated.

ANSTEAD, C.J., concurs.

QUINCE, J.,

concurring in result only.

I concur in the result only in this case for the reasons outlined in my concurring in result only opinion in Westerheide v. State, 831 So.2d 93 (Fla.2002). I do agree that defendants who enter pleas of guilty or nolo contendere to sexually violent offenses should be informed that the State may seek further confinement pursuant to the Jimmy Ryce Act.

      . In 1993, Harris entered a plea of nolo con-tendere and was adjudicated guilty of one count of an attempted sexual act with a child under sixteen years of age. Harris was sentenced to a term of thirty months in prison on this charge.

      . The First District denied Harris's petition for a writ of certiorari to review the trial court’s ruling before trial. See Harris v. State, 766 So.2d 1239, 1241 (Fla. 1st DCA 2000) ("We find that an appeal from a final order is the adequate and appropriate remedy for denial of a motion to dismiss in this context, just as it is in virtually every other setting.”).

      . Several other courts have affirmed trial court orders without opinion, citing Murray. See Godboldt v. State, 28 Fla. L. Weekly D1928, - So.2d -, 2003 WL 21939030 (Fla. 1st DCA Aug. 14, 2003); Ritchie v. State, 842 So.2d 234 (Fla. 5th DCA 2003); Viruet v. State, 847 So.2d 997 (Fla. 5th DCA 2003); Meadows v. State, 839 So.2d 747 (Fla. 4th DCA 2003); Crockett v. State, 834 So.2d 959 (Fla. 4th DCA 2003).

      . We accept the State’s representation that Harris is serving the probationary portion of his sentence while civilly committed. We therefore do not address whether the State would violate his plea agreement if his probation did not begin until after he was released from civil commitment.

      . We note, however; that during the plea colloquy we believe it appropriate for the trial court to inform a defendant of the possible consequences of a guilty plea, namely that the defendant may be subject to civil commitment pursuant to the Ryce Act. We hereby refer this matter to the Criminal Procedure Rules Committee of the Florida Bar to formulate language addressing this requirement during the colloquy.

      .I do not, however, agree with the Court’s broad statement in Murray, a decision in which I did not participate, that "any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment.” Id, at 224.

      . The Jimmy Ryce Act applies to "sexually violent predators,” who are those persons who have been convicted of a sexually violent offense and who suffer from "a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined.” § 394.912(10), Fla. Stat. (2003). A "sexually violent offense” is defined as:
      (a) Murder of a human being while engaged in sexual battery in violation of s. 782.04(l)(a)2.;
      (b) Kidnapping of a child under the age of 13 and, in the course of that offense, committing:
      1. Sexual battery; or
      2. A lewd, lascivious, or indecent assault or act upon or in the presence of the child;
      (c) Committing the offense of false imprisonment upon a child under the age of 13 and, in the course of that offense, committing:
      1. Sexual battery; or
      2. A lewd, lascivious, or indecent assault or act upon or in the presence of the child;
      (d) Sexual battery in violation of s. 794.011; (e) Lewd, lascivious, or indecent assault or act upon or in presence of the child in violation of s. 800.04;
      (f) An attempt, criminal solicitation, or conspiracy, in violation of s. 777.04, of a sexually violent offense;
      (g) Any conviction for a felony offense in effect at any time before October 1, 1998, which is comparable to a sexually violent offense under paragraphs (a)-(f) or any federal conviction or conviction in another state for a felony offense that in this state would be a sexually violent offense; or
      (h) Any criminal act that, either at the time of sentencing for the offense or subsequently during civil commitment proceedings under this part, has been determined beyond a reasonable doubt to have been sexually motivated.
      § 394.912(9), Fla. Stat. (2003).

      . I would also urge that the plea agreement that the defendant signs be revised to include a written acknowledgment of the potential for commitment under the Jimmy Ryce Act.