author: THOMPSON, Judge. MURDOCK,

text:
    J.M. v. D.V.
    2020614.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2003.

      Jerry Wayne Baker, Jr., Guntersville, for appellant.
    Michael D. Mastín, Albertville, for ap-pellee.
   THOMPSON, Judge.

On April 11, 2002, D.V. (“the father”) filed a petition for the determination of custody of J.T.T.V. (“the child”) in the Marshall Juvenile Court (“the trial court”). In his petition, the father alleged that the child was living with the maternal grandparents and that J.M. (“the mother”) had very limited contact with the child. Shortly after the father filed his petition, the trial court entered an ex parte order in which it ordered that the child continue to live with the maternal grandparents, subject to visitation by the father, and appointed a guardian ad litem to represent the interests of the child. On April 15, 2002, the mother answered, pro se. On April 30, 2002, the mother, then represented by an attorney, filed a second answer and a counterclaim seeking custody of the child.

On August 19, 2002, the trial court ordered genetic testing. The results of that test established the father’s paternity of the child. The trial court also named a court appointed judicial advocate (“CAJA”) to investigate and to prepare a report. The trial court held a final hearing on March 7, 2003, and on March 25, 2003, it entered a judgment awarding joint custody of the child to the mother and the father with the father having primary physical custody of the child. The judgment ordered the mother to pay to the father $85.56 per month in child support. The mother appealed.

The child was born on November 20, 1997. The father was present in the hospital when the child was born. The mother testified that she did not put the father’s name on the birth certificate even though she knew he was the child’s father. The father testified that he believed the child was his when the child was born. The mother and the father never married. The record indicates that the father has been involved with the .child since the child’s birth.

At the time of the hearing in this matter, the child was 5 years old; the child was not enrolled in kindergarten and had not attended any preschool program. According to the mother, she attempted to enroll the child in a preschool program but the child was not accepted. The mother testified that the child stays at the home of the maternal grandparents during the day while the mother works. The maternal aunt, who resides in the maternal grandparents’ house with her two children, testified that she keeps the child. According to the maternal aunt, the child watches cartoons the majority of that time.

The mother is employed full-time with Genesis Manufacturing. The mother shares an apartment with her husband, B.M., her eight-year-old daughter from a prior relationship, and the child; the mother and B.M. have been married for approximately four years. B.M. is employed full-time.

B.M. testified that he has been arrested multiple times. During the course of the marriage, B.M. was arrested twice following incidents of domestic violence involving the mother. Arrest records, attached to the CAJA report admitted into evidence at the hearing, and B.M.’s testimony reveal that on June 16, 2001, B.M. was arrested after he grabbed the mother’s neck and refused to let her out of his vehicle. The mother sustained a cigarette burn to her right midsection and a bruise on her right rib cage during that incident. The mother testified that she did not press charges against B.M. and did not go to court on the assigned court dates. According to the mother, the child was staying with the father at the time of that incident.

On February 14, 2002, B.M. was arrested a second time for domestic violence. The mother testified that she and B.M. were “scuffling” when she fell down and suffered an injury to her left jaw; the mother was admitted to the hospital as a result of her injury. According to the mother, both she and B.M. had been drinking before the incident. The mother testified that she did not pursue the prosecution of B.M. relating to that incident. The mother stated that the child was staying with the maternal grandmother at the time of the February 2002 incident. B.M. denied that he ever hit the mother, but he admitted that he had pushed her several times during the course of the parties’ marriage. B.M. testified that he had never been convicted of a crime.

The mother testified that B.M. was a good role model for the child. The mother denied that B.M. was physically violent or abusive and testified that B.M. did not curse. B.M. testified that the parties had only separated once, for a period of three months, during their four-year marriage. The mother testified that the child has never been present when she and B.M. were arguing or fighting. According to the mother, she offers a safe environment for the child, and, therefore, she argues, she should receive custody of the child.

The mother testified regarding an incident on February 13, 2003, during which the maternal grandmother attempted to take the child from the mother’s mobile home. According to the mother, the maternal grandmother broke a window in the mobile home in an effort to get to the child. The maternal grandmother testified that she “lost her cool” when the mother and B.M. would not let her in the mobile home to see the child. The maternal grandmother was subsequently arrested for domestic violence.

The father is originally from Mexico, but he has lived in the United States for the past 12 years. According to the father, he is a legal resident of the United States, and he plans to apply for United States citizenship in 2004. He does not intend to move back to Mexico. The father is self-employed in the masonry business; he has owned his own business for the past three years. The father lives in an apartment with his wife; the father and his wife have no children.

The father testified that after the child was born the maternal grandparents allowed him to visit the child. The mother testified that the father visited with the child every other weekend and that she did not object to the visitation. The mother testified that she prevented the father from taking the child for visitation only twice. According to the mother, she prevented the father from visiting the child when he had threatened to take the child to Mexico.

The father filed for custody of the child when the child was four years old. The father testified that, as the child got older, he grew concerned about the way the child was being raised. The father stated that he rarely saw the mother with the child. The father testified that the maternal grandfather informed him that the child was living with him and the maternal grandmother. The mother testified that the child lived with her and B.M. but that the father would typically pick the child up at the home of the maternal grandparents for visitation before the mother had an opportunity to pick the child up after she got off work. According to the mother, the child has lived with her continually with the exception of six months when the child lived with the maternal grandparents after the mother and B.M.’s house flooded.

The mother testified that she received no child support from the father after the child was born. According to the father, he barely made enough to survive before he filed for a custody determination. The father testified that he occasionally contributed money towards the purchase of clothes and diapers for the child. According to the mother, the father started giving her money for the child only six months before the hearing in this matter. The father stated that during the two years before the hearing, he had given the maternal grandparents $50 per week for the care of the child when he was financially able. According to the father, the mother never asked him for child support and the mother never sought a court order requiring him to pay child support. The mother testified that her financial situation had been “poor” since the child was born.

The father testified that his immediate family lives close by and that the child frequently plays with the father’s younger nieces and nephews. The father testified that he takes the child swimming and plays soccer with the child during his visitation. The child also attends church with the father. According to the father, the child shows an interest in attending school. The father expressed concern that the child was not yet in a preschool program. The father testified that if he were to receive custody of the child, he would immediately enroll the child in a preschool program.

David Pendergrast, a CAJA volunteer, testified that he received the case for review after A1 Almador, another CAJA volunteer, was removed from the case at the request of the mother for alleged bias. Pendergrast testified that he reviewed the material prepared by Almador and interviewed the mother, the father, the maternal grandparents, and the maternal aunt. In an addendum to AJmador’s CAJA report, Pendergrast determined that the findings and report prepared by Almador were accurate and he adopted those findings. The CAJA report prepared by Al-mador recommended that custody of the child be awarded to the father. At the end of the hearing, the guardian ad litem recommended that the child be placed in the custody of the father and that the mother and the maternal grandparents have liberal visitation. Both the CAJA and the guardian ad litem concluded that the child was in need of structure and stability and that the current custody arrangement did not promote those needs.

On appeal, the mother argues that the trial court erred in awarding the father primary physical custody of the child. Specifically, the mother contends that custody of the child should not have been awarded to the father because the father failed to pay child support before filing for a custody determination. The determination of an award of custody is within the sound discretion of the trial court. Pierce v. Helka, 634 So.2d 1031 (Ala.Civ.App.1994). A trial court’s custody determination following the presentation of ore tenus evidence is presumed correct and will not be reversed absent a finding that the trial court abused its discretion or that its determination is so unsupported by the evidence as to be plainly and palpably wrong. Pierce v. Helka, supra.

When the trial court makes an initial custody determination, neither party is entitled to a presumption in his or her favor, and the “best interest of the child” standard will generally apply. Nye v. Nye, 785 So.2d 1147 (Ala.Civ.App.2000). In the instant case, the parties agreed to an informal custody arrangement whereby the mother would have physical custody of the child and the father would have liberal visitation; however, there was no prior judicial determination with regard to the custody of the child. Therefore, this is an initial custody determination.

When there is a prior custody judgment, the party seeking a change in custody must meet the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984); however, if custody has not previously been determined, then the appropriate standard to apply is “the best interest of the child.” Ex parte Couch, 521 So.2d 987, 989 (Ala.1988). See also Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994)(“If neither parent has previously been given primary physical custody, then the ‘best interests of the child’ standard applies.”); Fitzhugh v. Fitzhugh, 634 So.2d 565 (Ala.Civ.App.1994)(where there was no judicial determination favoring one parent regarding physical custody, the best-interests standard applied); Mardis v. Mardis, 660 So.2d 597 (Ala.Civ.App.1995)(because there was no prior determination regarding physical custody, the best-interests standard applied).

A trial court may consider, in making an initial award of custody based on the best interests of the child, factors such as the “ ‘characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between [the] child and each parent.’ ” Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994) (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981)). Likewise, it is important for the trial court to consider such factors as “ ‘the children’s age and sex and each parent’s ability to provide for the children’s educational, material, moral, and social needs.’ ” M.S.H. v. C.A.H., 829 So.2d 164, 168 (Ala.Civ.App.2002) (quoting Graham, 640 So.2d at 964).

The mother and the father are both employed and work primarily during the day. The child, who was five years old at the time of the hearing, is not enrolled in a preschool program. The child, according to testimony, spends much of the day watching cartoons in the care of the maternal aunt. The father testified that the child had expressed an interest in attending preschool and that he plans to enroll the child in preschool. While in the custody of the father, the child participates in sports and attends church.

The mother is married to B.M.; B.M. has an extensive arrest record. The mother has had B.M. arrested twice for domestic violence; she was physically injured each time as a result of B.M.’s violence. The mother declined to prosecute B.M. and stayed with B.M. despite his violent behavior. The record on appeal also reveals that the maternal grandmother, who helps care for the child during the week, had exhibited inappropriate behavior when she broke a window in an attempt to remove the child from the mother and B.M.’s mobile home.

The father has regularly visited the child since the child was born. According to the father, he could not afford to pay child support to the mother after the child was born; however, the father testified that during the two years before the hearing he had given the grandparents approximately $50 per week as child support when he was financially able. The father gave the money to the grandparents because he said he believed the child was living with the grandparents. The mother contends on appeal that the father refused to financially provide for the child; however, the father testified that the mother never asked him for child support. While a parent’s responsibility to support his child financially should be understood, and while this court certainly does not condone the father’s failure in this regard, the payment of child support only intermittently is not dispositive of whether it is in a child’s best interests to be placed in the custody of that parent.

In the instant case, the father paid child support as his financial situation improved. Although the father did not consistently pay child support, the father did consistently visit the child and actively participate in the child’s life. A parent’s failure to pay child support is one factor for the trial court to consider in determining custody. Given other factors, such as the mother’s abusive relationship with B.M., the child’s educational needs, and the recommendations of the CAJA and the guardian ad litem, we cannot say that the trial court abused its discretion in awarding primary physical custody to the father. See M.S.H. v. C.A.H., supra.

The mother also contends that the trial court committed reversible error when it considered the CAJA report prepared by A1 Almador in light of his alleged improper conduct, his possible bias, and the alleged inadmissible hearsay contained in the CAJA report. The mother argues that her substantial rights were adversely affected by the admission of the CAJA report and by the trial court’s consideration of that report in its custody determination. The mother relies solely on Rule 45, Ala. R.App. P., in support of her argument that the CAJA report injuriously affected her substantial rights. Rule 45, Ala. R.App. P., provides, in pertinent part:

“No judgment may be reversed or set aside ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected the substantial rights of the parties.”

The record indicates that the mother requested that the trial court remove Al-mador as the CAJA after Almador informed the mother that he had attempted to rent a house to the father. Almador did not rent a house to the father upon the advice of his superiors. Following a February 7, 2002, hearing, the trial court removed Almador and appointed a new CAJA out of an abundance of caution. At the close of testimony at the March 7, 2003, hearing, the trial court overruled the mother’s objection to the admission of the CAJA report prepared by Almador and later adopted by Pendergrast, stating that it had not yet reviewed the report.

The CAJA report prepared by Almador, like the testimony offered at the March 7, 2003, hearing, detailed the history of domestic violence within the home of the mother and B.M. The report also addressed the child’s educational needs and his time spent with the mother, the father, the maternal grandparents, and the maternal aunt. The CAJA report also contained information that was not elicited through testimony at the hearing. Almador visited the homes of the mother, the father, and the maternal grandparents. During those visits he noted the condition of the homes and concluded that the home of the maternal grandparents was inadequate to meet the needs of the child; that the best interests of the child would not be served by placement in the mother’s home because of the multiple incidents of domestic violence involving B.M. and the mother; and that the father’s home offered a clean and safe environment for the child.

Pendergrast testified that he had visited the homes of the mother, the father, and the maternal grandparents. Although Pendergrast did not detail his observations from the visits in his written report to the trial court, he did adopt the CAJA report prepared by Almador, and he concluded that the father could provide a more stable and structured home environment for the child.

Contrary to the mother’s assertion on appeal, we cannot say that her substantial rights were violated by the admission of the CAJA report into evidence at the close of the hearing. The CAJA report consisted primarily of information that was elicited through testimony at the hearing. Both Almador and Pendergrast observed the conditions of the parties’ homes. Although specific testimony regarding the condition of the homes was not elicited at the hearing, Almador’s report detailed those conditions and Pendergrast adopted Almador’s findings as his own after interviewing the parties in their respective homes. The parties interviewed during Almador’s investigation testified at the hearing. Indeed, Almador was present and willing to testify at the hearing; however, the mother declined to call him as a witness to question his alleged bias. In light of the foregoing, we cannot say that the trial court erred by admitting the CAJA report as evidence for consideration in its custody determination.

The mother further contends that the trial court erred in determining her child-support obligation absent the submission of the forms required pursuant to Rule 32(E), Ala. R. Jud. Admin., and absent any evidence of the parties’ income.

“[T]his court has consistently held that the application of Rule 32 is mandatory in child-support actions filed on or after October 9, 1989. A trial court may deviate from the child-support guidelines in determining a child-support amount; however, any deviation' is improper if it is not justified in writing. In Martin v. Martin, 637 So.2d 901, 902 (Ala.Civ.App. 1994), this court issued the following directive:
“ ‘We hold, therefore, that the word “shall” in Rule 32(E), Ala. R. Jud. Admin., mandates the filing of a standardized Child Support Guidelines Form and a Child Support Obligation Income Statement/Affidavit Form.’
“Compliance with Rule 32(E) is mandatory, even though the trial court may find that the application of the guidelines would be unjust or inequitable. When the court determines that application of the guidelines would be manifestly unjust or inequitable, and then deviates from the guidelines in setting a support obligation, the court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. When Rule 32(E) has not been complied with and child support is made an issue on appeal, this court may reverse the judgment of the trial court and remand the case for further proceedings in compliance with Rule 32.”

Thomas v. Norman, 766 So.2d 857, 859 (Ala.Civ.App.2000)(some citations omitted)(emphasis added).

The record on appeal does not contain a CS-41 income-statement/affidavit form or a CS^42 child-support-guidelines form for the father or the mother. Neither the mother nor the father testified regarding their income, although both parties testified that they were employed. We are unable to ascertain how the trial court reached its child-support determination. Therefore, this court must reverse that part of the judgment of the trial court addressing the issue of child support. We must remand the case to the trial court to require the mother and the father to submit the required child-support forms reflecting their income at the time of the March 25, 2003, judgment. The trial court is instructed to determine child support in compliance with the Rule 82 child-support guidelines or to state the reasons for its deviating from those guidelines. See Thomas v. Norman, supra.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and CRAWLEY and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

MURDOCK,

Judge, concurring in the result.

I write separately to note my understanding that the presumption recognized by our Supreme Court in Ex parte McLendon, 455 So.2d 863 (Ala.1984), is applicable when there has been a prior judgment awarding physical custody of a child to either a parent or a nonparent (or a voluntary relinquishment or forfeiture of the physical custody of a child), and the same has been ‘acted upon by such other person to the manifest interest and welfare of the child.’ ” 455 So.2d at 865-66 (quoting Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947)); Kaiser v. Kaiser, 868 So.2d 1095, 1101 n. 2 (Ala.Civ.App.2003); R.K v. R.J., 843 So.2d 774, 777-78 (Ala.Civ.App.2002); Dilorio v. Long, 839 So.2d 650, 652-53 (Ala.Civ.App.2001) (plurality opinion). See Spears v. Wheeler, 877 So.2d 607, 609 (Ala.Civ.App.2003) (Murdock, J., dissenting) (reviewing applicable authority). See also R.O.M. v. B.B., 854 So.2d 98, 100 (Ala.Civ.App.2003). Having said that, I concur in the result reached by the main opinion.

      . We note that the application of the McLen-don standard is not limited to instances in which there has been a prior custody determination; it is also appropriately applied when a trial court finds that a parent has voluntarily relinquished custody of the child. Ex parte Couch, 521 So.2d 987 (Ala.1988). The trial court made no findings that the father had voluntarily relinquished custody of the child in the instant case.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Albert James EVANS v. STATE of Alabama.
    CR-02-1567.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.

      Albert James Evans, pro se.
    William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appel-lee.
   COBB, Judge.

In 1985, Albert James Evans pleaded guilty to one count of second-degree theft of property and one count of second-degree receiving stolen property; he was sentenced to concurrent 15-year sentences. Evans did not appeal his convictions and sentences.

In 2002, Evans filed his first Rule 32, Ala. R.Crim. P., petition in this case. The circuit court summarily denied the petition on October 9, 2002, and Evans did not appeal the denial. On March 18, 2003, Evans filed his second Rule 32 petition and raised, among other things, the same claim that he had raised in his first petition. After the State had responded, the circuit court summarily dismissed the petition on May 9, 2003. This appeal followed.

In his petition, Evans claimed that he was unjustly denied his right to appeal the denial of his first petition because the court did not notify him that his first petition was denied. He also reiterated the claim asserted in his first petition — that, because he had been indicted for first-degree receiving stolen property, the trial court did not have jurisdiction to accept his guilty plea to second-degree receiving stolen property. Specifically, he claimed that the value of the property he received exceeded the value set by statute for the offense of second-degree receiving stolen property. On appeal, Evans reiterates his claims and contends that the circuit court abused its discretion by dismissing his petition.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). “If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999).

Initially, we note:

“A trial court does not have authority to accept a guilty plea to an offense not encompassed by the indictment. Edwards v. State, 671 So.2d 129 (Ala.Cr.App.1995); Glover v. State, 649 So.2d 216 (Ala.Cr.App.1994); Ford v. State, 612 So.2d 1317 (Ala.Cr.App.1992); Ross v. State, 529 So.2d 1074 (Ala.Cr.App.1988). See Rule 13.5(a), Ala.R.Crim.P. ‘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.’ Edwards, 671 So.2d at 130.”

Howard v. State, 710 So.2d 456, 459 (Ala.Crim.App.1996). Thus, if second-degree receiving stolen property is not a lesser-included offense of first-degree receiving stolen property, then the trial court did not have jurisdiction to accept Evans’s guilty plea. Because this claim implicates the subject matter jurisdiction of the trial court, it cannot be precluded.

We addressed a similar claim in Evans’s appeal from the denial of a Rule 32 petition arising from his guilty plea for theft of property, rather than the plea for receiving stolen property, which is the subject of this case. Citing Grady v. State, 831 So.2d 646 (Ala.Crim.App.2001), we found such a claim to be without merit.

In Grady, this Court held that “second-degree theft of property is included within the offense of first-degree theft of property.” 831 So.2d at 649. Specifically, we stated:

“Section 13A-8-3, Ala.Code 1975, provides, in pertinent part, that ‘[t]he theft of property which exceeds $1,000.00 in value, or property of any value taken from the person of another, constitutes theft of property in the first degree.’ Section 13A-8-4, Ala.Code 1975, provides, in pertinent part, that ‘[t]he theft of property which exceeds $250.00 in value but does not exceed $1,000.00 in value, and which is not taken from the person of another, constitutes theft of property in the second degree.’ Under § 13A-1-9, Ala.Code 1975, ‘A defendant may be convicted of an offense included in an offense charged. An offense is an included one if ... [i]t is specifically designated by statute as a lesser degree of the offense charged.’ The Commentary to this section explains: ‘Subdivision (a)(3) covers a degree relationship in the statutes themselves, e.g., second-degree theft on a charge of first-degree theft.’ Therefore, because of the degree relationship between the two, second-degree theft of property is included within the offense of first-degree theft of property.”

831 So.2d at 649. We now hold that this same rationale extends to the property value requirements and the offenses of receiving stolen property. Therefore, under the facts of this case, second-degree receiving stolen property was a lesser-in-eluded charge of first-degree receiving stolen property, the charge for which Evans was indicted. Thus, his claim that the trial court was without jurisdiction to accept his guilty plea to second-degree receiving stolen property is without merit.

Additionally, assuming, without deciding, that the circuit court improperly denied Evans the opportunity to appeal the denial of his first petition, any error would have been harmless. We have addressed above the issue he raised in his first petition, because it was the same issue raised in this, his second, petition, and we have found it to be without merit. Evans has received appellate review of his claim and has not, therefore, suffered any prejudice. Rule 45, Ala. R.App. P.

For the reasons stated above, the judgment of the circuit court is affirmed.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.


author: PER CURIAM.

text:
    Ex parte Rex David NORRIS. (In re State of Alabama v. Rex David Norris).
    CR-02-2011.
    Court of Criminal Appeals of Alabama.
    Oct. 10, 2003.
    William H. Pryor, Jr., atty. gen., and W. Van Davis, district atty., Ashville, for petitioner.
    Rex David Norris, pro se.
   PER CURIAM.

The petitioner, Rex David Norris, filed this petition for a writ of mandamus directing Judge Charles E. Robinson, Sr., to rescind his order directing the Alabama Department of Corrections to withhold 50% of all moneys deposited by Norris in his inmate account until the filing fee for his postconviction petition has been collected.

This petition must be stricken because Norris failed to sign the mandamus petition filed in this Court. Rule 21(a), Ala.R.App.P., addresses the filing of a mandamus petition in an appellate court; that rule states, in part:

“(a) Mandamus or Prohibition to a Judge or Judges; Petition for Writ; Service and Filing; Time for Filing. Application for a writ of mandamus or of prohibition directed to a judge or judges shall be made by filing a petition therefor with the clerk of the appellate court having jurisdiction thereof with certificate of service on the respondent judge or judges and on all parties to the action in the trial court.”

See also § 6-6-640(a), Ala.Code 1975.

Rule 81, Ala.R.Civ.P., states those actions to which the Rules of Civil Procedure are applicable and provides, in part:

“(a) Proceedings Controlled by Statute. In the following proceedings, these rules shall be applicable to the extent that the practice in such matters is not provided by statute:
“(19) Mandamus, prohibition, certio-rari and other remedial writs of a supervisory nature.”

A mandamus petition filed pursuant to Rule 21, Ala.R.App.P., is governed by the Rules of Civil Procedure. Norris did not sign his mandamus petition. Rule 11, Ala. R.Civ.P., specifically states that all papers filed with a court must be signed. Rule 11, Ala.R.Civ.P., provides:

“Every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the pleading, motion, or other paper, and state the party’s address. Except when otherwise specifically provided by rule or statute, pleadings, motions or other papers need not be verified or accompanied by affidavit. The rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an attorney constitutes a certifí-cate by the attorney that the attorney has read the pleading, motion, or other paper; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading, motion, or other paper is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading, motion, or other paper had not been served. For a wilful violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted.”

See also Federal Rules of Appellate Procedure with Eleventh Circuit Rules and Internal Operating Procedures, Title VII, 11th Cir. R. 25-4 (West Deskbook 2003) (“All papers filed, including motions and briefs, must contain the name, office address, and telephone number of an attorney or a party proceeding pro se, and be signed by an attorney or by a party proceeding pro se. Inmate filings must be signed by the inmate and should contain name, prisoner number, institution, and street address.”).

This signature requirement takes on added significance in this case because the petition is the only document before this Court. Allegations made in a mandamus petition are taken as true unless they are refuted in a respondent’s answer. See Ex parte Sharpe, 513 So.2d 609 (Ala.1987).

For the foregoing reasons, the petition filed with this Court is stricken.

PETITION STRICKEN.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . The Alabama Supreme Court has specifically held that the verification-by-affidavit requirement for mandamus petitions filed pursuant to § 6-6-640, Ala.Code 1975, does not apply to mandamus petitions filed in an appellate court pursuant to Rule 21, Ala. R.App.P. See Ex parte Ackles, 840 So.2d 145 (Ala.2002), and Ex parte Johnson, 485 So.2d 1098 (Ala.1986).


text:
    Ex parte State of Alabama. In re STATE of Alabama v. A.J.
    CR-02-1896.
    Court of Criminal Appeals of Alabama.
    Oct. 10, 2003.

      William H. Pryor, Jr., atty. gen., and Eleanor Idelle Brooks, district atty., and Michael L. Kidd, asst, district atty., Montgomery, for petitioner.
    Daniel Gary Hamm, Montgomery, for respondent.
   PER CURIAM.

The district attorney for the Fifteenth Judicial Circuit filed this petition for a writ of mandamus directing Judge Eugene Reese to set aside his order granting A. J.’s application for treatment as a youthful offender under the Youthful Offender Act (“the YOA”).

In May 2002, A.J. was indicted for robbery in the first degree. He applied for youthful-offender treatment; his request was denied. A.J. then pleaded guilty, as an adult, to robbery in the second degree. He was sentenced on September 18, 2002, to five years’ imprisonment. That sentence was split and he was ordered to serve the first 180 days in a state boot camp facility. On September 26, 2002, A.J. moved to have his sentence amended. That motion was denied. In early 2003, A.J. completed his sentence in boot camp and began to serve the probationary period of his split sentence. In April 2003, A.J. moved that Judge Reese reconsider his application for youthful-offender treatment. Judge Reese granted A. J.’s motion to reconsider. The district attorney moved that Judge Reese reconsider his ruling on A. J.’s motion. That motion was denied; this petition followed.

The district attorney argues that Judge Reese had no jurisdiction to reconsider the youthful-offender request, which was filed months after A.J. had been sentenced and indeed after he had served the incarceration period of his split sentence. The district attorney contends that youthful-offender status must be either granted or denied at a point near the commencement of the proceedings. He cites East v. State, 57 Ala.App. 658, 331 So.2d 414 (Grim. 1976), in support of his contention.

A.J. contends that the sentence imposed in September 2002 was not final because in imposing the sentence Judge Reese stated that he retained jurisdiction over the sentence. A.J. argues: “The Court technically delayed pronouncement of [A.J.’s] final judgment when it retained jurisdiction to reconsider his application for youthful offender status.” (Respondent’s answer at p. 10.)

Initially, we note that a petition for a writ of mandamus has been used to seek review of an unlawful sentence. See Smith v. State, 447 So.2d 1334 (Ala.1984). This extraordinary writ has been used to seek review of whether a trial court has improperly granted youthful-offender status when the accused was ineligible because of his age. See State v. R.R.A., 842 So.2d 42 (Ala.Crim.App.2002).

As a general rule, a trial court retains jurisdiction to modify a sentence for only 30 days after the sentence is imposed. See Jolly v. State, 689 So.2d 986 (Ala.Crim. App.1996), and Rule 24.4, Aia.R.Crim.P. See also Gaines v. State, 703 So.2d 1023, 1023 (Ala.Crim.App.1997) (“ ‘[t]he general rule is that “it is not within the power of the court to increase a sentence when punishment has already been suffered under the original sentence,” ’ ” quoting Brown v. State, 376 So.2d 1382, 1385 (Ala.Crim.App.1979)). Cf. State v. Green, 436 So.2d 803 (Ala.1983) (a trial court may grant probation any time before the execution of the sentence has begun).

A trial court also retains limited jurisdiction if the sentence is imposed pursuant to the Split Sentence Act. According to § 15-18 — 8(c), Ala.Code 1975, a part of the Split Sentence Act, a court retains jurisdiction of a split sentence until the incarceration period of the sentence has been completed. “Regardless of whether the defendant has begun serving the minimum period of confinement ordered under the provisions of subsection (a), the court shall retain jurisdiction and authority throughout said period to suspend that portion of the minimum sentence that remains and place the defendant on probation.... ” Section 15-18-8(c).

Alabama caselaw supports the issuance of this writ. See East v. State, 57 Ala.App. 658, 331 So.2d 414 (Crim.1976), and Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975). The facts presented in this case are very similar to those presented in East. In East the defendants were indicted for robbery. At arraignment, they applied for treatment as youthful offenders. Their applications were denied. The defendants subsequently pleaded guilty and after they were sentenced reapplied for treatment under the YOA. The trial court denied the motion without a hearing, stating that the YOA did not authorize an application for youthful-offender treatment after conviction. This Court, affirming the lower court’s order, stated:

“We have again carefully read the Youthful Offender Act, Title 15, Section 266(1) et seq., Code of Alabama 1940 (Supplement) [now codified at § 15-19-1 et seq., Ala.Code 1975], and we do not find a provision for a second or successive applications for treatment as a Youthful Offender after the Court has, in his discretion, denied the first application.
“In Clemmons v. State,- Ala., [294 Ala. 746,] 321 So.2d 238 [(1975)], the Supreme Court said:
“ ‘The court would naturally consider such matters as the nature of the crime charged, prior convictions, or absence thereof — all of which can be ascertained without a lengthy, time consuming investigation by the probation officer.
“ ‘Further'—
“‘However, our statute requires that the determination to grant or refuse youthful offender treatment be made at a point near the commencement of the criminal action, and before entry of a plea. ’ (Emphasis supplied.).
“Appellant pleaded guilty to grand larceny and then reapplied for Youthful Offender treatment. As we read Clem-mons, supra, such procedure is not justified or authorized.”

331 So.2d at 415-16. In Clemmons, the Alabama Supreme Court stated, “Our statute requires that the determination to grant or refuse youthful offender treatment be made at a point near the commencement of the criminal action, and before entry of a plea.” 294 Ala. at 749, 321 So.2d at 242.

We find support for the above holdings in the wording of the YOA. See § 15-19-1 et seq., Ala Code 1975. The YOA provides that the proceedings for youthful offender are separate from adult proceedings, that there is no jury if the youthful offender does not plead guilty, that the records are not open to the public, and a determination under the YOA is not a conviction. See §§ 15-19-3, 15-19-4, and 15-19-7, Ala. Code 1975. Here, the safeguards of the YOA were rendered obsolete because A.J. had already pleaded guilty as an adult and was sentenced as an adult — proceedings that were all matters of public record.

A.J. also argues that caselaw allows a trial court to grant youthful-offender status retroactively. However, the cases A.J. cites involve instances in which a trial court failed to notify a defendant of his eligibility for treatment as a youthful offender and this Court directed the lower court to follow the proper procedures. One such case was Prince v. State, 392 So.2d 853 (Ala.Crim.App.1980). In Prince we stated:

“The usual procedure mandated by the Youthful Offender Act is that the court advise the youthful offender of the existence and advantages of the Act before any trial has begun, thus allowing the offender the option of whether to incur the background investigation, or proceed with a trial by jury. § 15-19-1, et seq., Code of Alabama 1975; Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975); Johnson v. State, 56 Ala.App. 582, 324 So.2d 297, cert. denied, 295 Ala. 407, 324 So.2d 305 (1975). But where this has not been done, and the offender has proceeded to trial and been found guilty by a jury, a complete reversal has not been mandated by our appellate courts; instead, the cause is remanded to the trial court so that the proper procedures might be implemented.”

392 So.2d at 855-56. This is not the situation in this case. The Alabama Supreme Court has specifically held that the YOA is not to be applied retroactively. See Morgan v. State, 291 Ala. 764, 287 So.2d 914 (1973). See also Norris v. State, 429 So.2d 649 (Ala.Crim.App.1982).

Also, according to the Split Sentence Act, Judge Reese did not have jurisdiction to modify AJ.’s sentence after he had served the incarceration portion of his sentence. See § 15-18-8(c). As we stated in Davis v. State, 644 So.2d 44 (Ala.Crim.App.1994):

“On May 18, 1993, more than 30 days after his probation revocation, Davis filed an untimely motion for modification of his sentence; the trial court denied the motion. Because Davis had already served the minimum period of confinement, the trial court was without jurisdiction to consider the untimely motion for modification; therefore the order denying the motion was void and unappealable. § 15-18-8(c), Code of Alabama 1975. See also Massey v. State, 587 So.2d 448 (Ala.Crim.App.1991) (trial court loses all jurisdiction to modify sentence if the request to modify a sentence is not filed within 30 days of sentencing).”

644 So.2d at 44.

Based on established law, the trial court had no jurisdiction to grant youthful-offender status in this case after A.J. had pleaded guilty and after he had served a portion of his sentence. The district attorney has established the prerequisites for the issuance of this writ. Judge Reese is directed to vacate his order granting A. J.’s application for youthful-offender treatment.

PETITION GRANTED; WRIT ISSUED.

McMillan, p.j., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.


author: PER CURIAM. SHAW, Judge,

text:
    Jeffery BAKER, Jr. v. STATE of Alabama.
    CR-02-1775.
    Court of Criminal Appeals of Alabama.
    Oct. 10, 2003.
    Jeffery Baker, Jr., pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Jeffery Baker, Jr., filed a petition in the circuit court of Pike County entitled “Petition for Expungement.” In the petition Baker stated that the Alabama Criminal Justice Information Center (“ACJIC”) has been disseminating false information about his prior convictions, specifically, that those convictions were felonies when in fact they were misdemeanors, and he was petitioning to have ACJIC’s records concerning him corrected. After every judge in Pike County recused himself or herself, a special judge was appointed to consider the case. That judge denied the petition for expungement. Baker then appealed the denial of his petition to the Court of Civil Appeals. In December 2002, the Court of Civil Appeals transferred the case to the Alabama Supreme Court. In March 2003, the Supreme Court, pursuant to § 12-2-7, Ala. Code 1975, transferred the case back to the Court of Civil Appeals. In June 2003, the Court of Civil Appeals transferred the case to this Court.

This Court does not have jurisdiction of this ease. Baker’s action initiated in the circuit court to correct ACJIC’s records was brought pursuant to § 41-9-645, Ala.Code 1975. Baker’s pleadings in the lower court track the language of § 41-9-645, Ala.Code 1975, and reference this Code section. This section establishes a procedure pursuant to which a convicted defendant may challenge inaccurate information in ACJIC’s records. Section 41-9-645 states:

“If an individual believes such information to be inaccurate or incomplete, he may request the original agency having custody or control of the detail records to purge, modify or supplement them and to so notify the ACJIC of such changes.
“Should the agency decline to so act or should the individual believe the agency’s decision to be otherwise unsatisfactory, the individual or his attorney may within 30 days of such decision enter an appeal to the circuit court of the county of his residence or to the circuit court in the county where such agency exists, with notice to the agency, pursuant to acquiring an order by such court that the subject information be expunged, modified or supplemented by the agency of record. The court in each such case shall conduct a de novo hearing and may order such relief as it finds to be required by law. Such appeals shall be entered in the same manner as appeals are entered from the court of probate; except, that the appellant shall not be required to post bond nor pay the costs in advance. If the aggrieved person desires, the appeal may be heard by the judge at the first term or in chambers. A notice sent by registered or certified mail shall be sufficient service on the agency of disputed record that such appeal has been entered.”

(Emphasis added.)

The Legislature chose to provide that appeals from actions taken pursuant to § 41-9-645 are conducted in “the same manner as appeals are entered from the court of probate” This reference in § 41-9-645 suggests that the underlying action is civil in nature. Section 12-13-41, Ala. Code 1975, enumerates the duties of a probate judge. None of the duties referenced in § 12-13^1 deal with matters that are within the jurisdictional parameters of this Court. For example: a probate judge has jurisdiction to issue letters testamentary, to keep books of liens, and to keep books of notice of adverse possession of lands.

If this action is appealable, then subject matter jurisdiction rests with the Alabama Supreme Court. Ajl appeal from a ruling in circuit court on a probate matter falls within the jurisdiction of the Alabama Supreme Court. Section 12-22-22, Ala.Code 1975, states:

“An appeal to the Supreme Court may be taken from the judgment of the circuit court on an appeal brought to such court under the provisions of this division.”

This section specially addresses appeals from actions originally brought in the probate Court.

Moreover, the Alabama Supreme Court, recognizing its jurisdiction over this case, chose to transfer the case to the Court of Civil Appeals. In transferring the case the Supreme Court cited § 12-2-7, Ala. Code 1975. Section 12-2-7(6) states in part that the Alabama Supreme Court has jurisdiction “To transfer to the Court of Civil Appeals, for determination by that court, any civil case appealed to the Supreme Court and within the appellate jurisdiction of the Supreme Court.” This supports our interpretation that this action is a civil action, the appeal of which does not fall within the statutory jurisdiction of this Court. See § 12-3-9, Ala.Code 1975.

The Alabama Supreme Court has previously transferred this case to the Court of Civil Appeals. This Court is bound by the decisions of the Alabama Supreme Court. See § 12-3-16, Ala.Code 1975. Accordingly, this case is hereby transferred to the Court of Civil Appeals.

CASE TRANSFERRED.

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

SHAW, Judge,

concurring in the result.

I concur in transferring this case to the Court of Civil Appeals, although not for all the reasons stated by the majority. The Alabama Criminal Justice Information Center (“ACJIC”) is an administrative agency subject to the provisions of the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975. See Jefferson County v. Alabama Criminal Justice Information Ctr. Comm’n, 620 So.2d 651 (Ala.1993). It appears to me that the expungement proceeding here, although tangentially touching on criminal matters, is in. the nature of a civil proceeding authorized by § 41-9-590 et seq., Ala. Code 1975. Pursuant to § 41-9-594, the ACJIC Commission has established an internal administrative appeal procedure as a prerequisite for seeking appellate review in the circuit court. See Ala. Admin. Code (Ala.Criminal Justice Info. Ctr. Comm’n), Reg. 265-X-2-.03.

Section 41-9-645, which, I note, was enacted before the Commission’s creation of the internal administrative appeal procedure, states that an appeal from an agency’s adverse ruling on a petition for ex-pungement can be taken to the circuit court and that “such appeals shall be entered in the same manner as appeals are entered from the court of probate.” Although it is not entirely clear to me what the Legislature meant by the above-quoted language, I can find no provision in § 41-9-645, or in any other related section, that provides for an appeal of the circuit court’s judgment. Therefore, based on the plain language of § 41-9-645, I respectfully disagree with the majority’s conclusion that § 41-9-645 incorporates the provision in § 12-22-22, Ala.Code 1975, dealing with the appeal of probate rulings to the Supreme Court. Nonetheless, I believe that authorization for appeal can be found in § 41-22-21, Ala.Code 1975. Section 41-22-21 provides for an appeal to the appropriate appellate court of a decision of the circuit court concerning the propriety of an administrative agency’s ruling. Section 12-3-10, Ala.Code 1975, generally vests exclusive jurisdiction in the Court of Civil Appeals of all appeals challenging the decisions of administrative agencies. Furthermore, it is generally understood that the exclusive jurisdiction of the Court of Civil Appeals has not been limited to a direct appeal from a ruling of an administrative agency, but also encompasses appeals from the judgments of lower courts that have reviewed the action of the administrative agency. See Kimberly-Clark Corp. v. Eagerton, 438 So.2d 452 (Ala.1983); SC Realty, Inc. v. Jefferson County, Alabama, Tax Assessor, 638 So.2d 1343 (Ala.Civ.App.1993).

It is also significant to me, as it is to the majority, that the Supreme Court transferred this case to the Court of Civil Appeals.

For these reasons, I concur in the result reached by the majority.

      . Although in its transfer order the Court of Civil Appeals did not state a reason for transferring the case to this Court after the Supreme Court had transferred it to that court, the attorney general argued in its brief to the Court of Civil Appeals that the Court of Criminal Appeals had jurisdiction over the petition because the proceedings arose out of a criminal case.


text:
    Dedrick L. WELLS v. STATE of Alabama.
    CR-01-2613.
    Court of Criminal Appeals of Alabama.
    Oct. 10, 2003.
    No brief filed for either party.
   PER CURIAM.

The appellant, Dedrick L. Wells, appeals the circuit court’s order finding him incompetent to participate in the proceedings in the circuit court and committing him to the custody of the Department of Mental Health and Mental Retardation (“the Department”). From the sparse record before this Court it appears that Wells was adjudicated delinquent and was placed on probation. At some later time, probation-revocation proceedings were initiated. During the proceedings, Wells’s attorney moved for a mental evaluation of Wells. After the evaluation was completed, the trial court found Wells incompetent to participate in the probation-revocation proceedings, and it committed Wells to the custody of the Department. Wells, acting pro se, filed notice of appeal of the order finding him incompetent. The circuit court forwarded the appeal to this Court. We transferred the case to the Court of Civil Appeals. The Court of Civil Appeals then transferred the case to the Supreme Court. This Court then requested that the Supreme Court return the case to this Court. By order dated August 20, 2003, that court transferred the case to this Court pursuant to our request.

The order that is the subject of this appeal reads as follows:

“State and defense counsel waive defendant’s presence. State and defense counsel stipulate to oral report from Dr. Guy Renfroe. Pursuant to report and recommendation of Dr. Renfroe, the defendant is declared incompetent and committed to the custody of the Alabama Department of Mental Health and Mental Retardation to receive treatment until such time as he is found to be competent to proceed. The Defendant is continued in delinquency status.
“State’s motion to withdraw and file this case until such time that the defendant is competent to proceed is granted.”

As indicated by the order quoted above, Wells’s attorney agreed with the expert’s findings that Wells was incompetent and did not appeal from this ruling. Wells, however, acting pro se, filed a notice of appeal.

Rule 11, Ala.R.Crim.P., addresses the procedures for reviewing a defendant’s competency to stand trial or to participate in other court proceedings. Rule 11.6(c), Ala.R.Crim.P., states the options a trial court has when it determines that a defendant is incompetent to stand trial. Rule 11.6(d), Ala.R.Crim.P., further provides for periodic reviews of a defendant who is found to be incompetent. Rule 11.6(d)(1) states:

“(1) The court shall periodically review the situation of a defendant released pursuant to Rule 11.6(c)(2)(i) or Rule 11.6(c)(3)(ii) or committed for treatment pursuant to Rule 11.6(c)(2)(i), Rule 11.6(c)(3)(i), or pursuant to other provisions of law in effect before the effective date of these Rules of Criminal Procedure. The defendant shall be required to report periodically to the court at such times and dates as the judge shall specify in the court’s order and shall have the right to attend the review hearing, unless the court, after appropriate inquiry, determines that the defendant is so mentally or physically ill as to be incapable of attending. The release or commitment pursuant to an original order providing for release or commitment shall not exceed six (6) months, and the release or commitment pursuant to any order renewing an order providing for release or commitment shall not exceed one (1) year. The sheriff of the county in which the competency review hearing is held shall be responsible for transporting the defendant to and from the competency review hearing and shall be responsible for the custody and care of the defendant during the hearing and while the defendant is being transported.”

Rule 11.7 also provides for periodic competency hearings once a defendant has been committed.

However, there is no provision in Rule 11, Ala.R.Crim.P., addressing the right to appeal an order committing an individual after the individual has been found incompetent to stand trial. Nor is this Court aware of any other rule or statute that gives such a defendant the right to appeal that ruling. As we stated in Alabama Department of Mental Health and Mental Retardation ex rel. McClothan v. State, 873 So.2d 1176, 1177 (Ala.Crim.App.2003) (opinion on rehearing ex mero motu):

“ ‘ “The right of appeal is wholly statutory and is authorized in criminal cases from a judgment of conviction.” McCray v. State, 46 Ala.App. 588, 589, 246 So.2d 475, 476 (Ala.Crim.App.1971). “Appeals lie only from judgements of conviction, and then only on those counts upon which there is a finding of guilt.” Thornton v. State, 390 So.2d 1093, 1096 (Ala.Crim.App.1980). “An appeal cannot be taken from an order subsequent to the judgment of conviction unless authorized by statute.” Harris v. State, 44 Ala. App. 632, 632, 218 So.2d 285, 286 (1969).’
“ ‘An appeal in a criminal case can only be taken from a judgment of conviction, in the absence of statutory authority to the contrary. Hughes v. State, 45 Ala. App. 250, 228 So.2d 862 (1969).’ ”

873 So.2d at 1178.

Because there is no statute or rule of court that gives a defendant the right to appeal a competency order that has been entered finding the defendant incompetent this Court has no jurisdiction to consider this case. For the foregoing reasons, this appeal is due to be, and is hereby, dismissed. Wells’s remedy is to file a petition for a writ of habeas corpus according to § 15-21-3, Ala.Code 1975.

APPEAL DISMISSED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . We need not address the effect of the filing of a notice of appeal by an individual who has been found incompetent and who has been committed to the custody of the Department.

      . The Committee Comments to Rule 11.7 state:
      "Rule 11.7(a) is intended to ensure that the status of all defendants adjudicated incompetent under Rule 11.6(c)(2) will be thoroughly reviewed at reasonably frequent intervals. This review process is intended to obviate the very real danger that the defendant could be incarcerated without a trial for a number of months or years on minor charges when the defendant’s condition would not justify civil commitment (e.g., in any case where the .defendant is incompetent but poses no danger to himself or herself or to others).”

      . However, Section 15-21-3, Ala.Code 1975, provides:
      "Any person confined as insane may prosecute a writ of habeas corpus as provided in this chapter; and, if the judge or the jury, when the petitioner demands' the issues arising to be tried by a jury, shall decide at the hearing that the person is insane, such decision does not bar a second application alleging that such person has been restored to sanity.”


author: PARIENTE, J. BELL, J.,

text:
    Evelyn BARLOW, etc., Petitioner, v. NORTH OKALOOSA MEDICAL CENTER, etc., Respondent.
    No. SC02-796.
    Supreme Court of Florida.
    Feb. 12, 2004.
    Rehearing Denied July 8, 2004.

      Stanley Bruce Powell of Powell & Swan-ick, Niceville, FL, for Petitioner.
    William K. Thames, II, and Pamela K. Frazier of Lozier, Thames & Frazier, P.A., Pensacola, FL, for Respondent.
    Gail Leverett Parenti of Parenti, Falk, Waas, Hernandez & Cortina, P.A., Coral Gables, FL, for Florida Defense Lawyers Association, Amicus Curiae.
   PARIENTE, J.

We have for review the First District Court of Appeal’s decision in Barlow v. North Okaloosa Medical Center, 809 So.2d 71 (Fla. 1st DCA 2002), based on express and direct conflict with this Court’s decision in St. Mary’s Hospital, Inc. v. Phillipe, 769 So.2d 961 (Fla.2000), which held that the arbitration provisions of the Medical Malpractice Act specify the damages available when the parties agree to binding arbitration, regardless of whether the medical malpractice action involves a wrongful death. See id. at 973. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we quash the First District’s decision.

FACTS

Evelyn Barlow brought suit against North Okaloosa Medical Center (“NOMC”) for medical malpractice as the result of the death of her husband. NOMC admitted liability and the parties chose to proceed under the alternative arbitration procedure for medical malpractice claims set forth in section 766.207, Florida Statutes (2002). At the conclusion of the arbitration hearing, the panel awarded Mrs. Barlow economic damages in the amount of $102,365.50, which included $93,600 for lost services and $8,765.50 for funeral expenses. However, the panel awarded Mrs. Barlow nothing for loss of earning capacity and lost social security retirement benefits, which she had also claimed as economic damages. With respect to the social security retirement benefits, the panel stated:

No award was made for lost social security benefits to the estate since [Mrs. Barlow] failed to establish that there would exist any net accumulation after consumption. Stated differently, [Mrs. Barlow] failed to demonstrate that the social security benefits did not fairly represent the monies that would have been required to maintain the decedent. Notably, Section 766.207(7)(a), Florida Statutes, calls for an award of “net economic damages,” and there is no apparent reason to conclude that established principles used to calculate net economic damages should not apply to this case.

(Emphasis supplied.)

Mrs. Barlow appealed and the First District affirmed the award. See Barlow, 809 So.2d at 73. The First District explained its reason for affirming the award of zero damages for lost social security benefits as follows:

As surviving spouse and personal representative, Mrs. Barlow was entitled to recover the loss of prospective net accumulations, which might reasonably have been expected but for Mr. Barlow’s wrongful death, reduced to present money value. See § 768.21(6)(a), Fla. Stat. (2001).
Mrs. Barlow was afforded an opportunity to prove as a predicate for this element of damages the amount, if any, by which Mr. Barlow’s estate was diminished on account of his early death. To prove a loss in prospective net accumulations, however, she had to show not only a fall in household income, hut also that lower expenses did not offset the drop. See § 768.18(5), Fla. Stat. (2001) (defining net accumulations as that part of earnings “that the decedent probably would have retained as savings and left as part of her or his estate”); Tobias v. Osorio, 681 So.2d 905, 907 (Fla. 4th DCA 1996) (explaining that under the wrongful death statute, “net accumulations” is the part of the decedent’s expected income which the decedent probably would have retained as savings). The arbitration panel concluded that Mrs. Barlow failed to carry her burden to prove that there would have been net accumulations, if her husband had lived. See Ellis v. Golconda Corp., 352 So.2d 1221, 1227 (Fla. 1st DCA 1977) (concluding that there was “not any record basis for an award for loss of net accumulation of [decedent’s] prospective estate” in the absence of proof of decedent’s expenses); Seaboard Coast Line R.R. Corp. v. Robinson, 263 So.2d 626, 627 (Fla. 2d DCA 1972) (reversing a jury award of damages in a wrongful death action where there was no evidence that the decedent’s income from social security and gratuitous financial assistance exceeded her day to day needs). On this record, no error has been shown.

Id. (emphasis supplied). Mrs. Barlow sought review in this Court, arguing that the First District’s reliance on the definition of “net accumulations,” found in the Wrongful Death Act, see § 768.21(6)(a), Fla. Stat. (2002), directly and expressly conflicts with this Court’s decision in St. Mary’s Hospital.

ANALYSIS

The Medical Malpractice Act, sections 766.201 through 766.212, Florida Statutes (2002), was enacted in 1988, see ch. 88-1, §§ 48-54 at 164-71, Laws of Fla., and contains two main components: “(1) a presuit investigation process to eliminate frivolous claims and (2) a voluntary arbitration process to encourage settlement of claims.” University of Miami v. Echarte, 618 So.2d 189, 192 (Fla.1993). With respect to the voluntary arbitration process, section 766.207(7) provides that a claimant who submits to arbitration on the amount of damages can recover, in part,

[n]et economic damages ... including, but not limited to, past and future medical expenses and 80 percent .of wage loss and loss of earning capacity, offset by any collateral source payments.

§ 766.207(7)(a), Fla. Stat. (2002). Section 766.202 defines “economic damages ” as

financial losses which would not have occurred but for the injury giving rise to the cause of action, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity.

§ 766.202(3), Fla. Stat. (2002).

In contrast, as noted by this Court in St. Ma'ry’s Hospital, “the Wrongful Death Act does not provide claimants with such a full range of economic damages.” 769 So.2d at 973. Section 768.21, Florida Statutes (2002), sets forth the damages recoverable under the Wrongful Death Act and provides in pertinent part:

(6) The decedent’s personal representative may recover for the decedent’s estate the following:
(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduce to present money value, may also be recovered:
1. If the decedent’s survivors include a surviving spouse....

§ 768.21(6)(a) (emphasis supplied). Section 768.18(5), Florida Statutes (2002), defines “net accumulations” as

the part of the decedent’s expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. “Net business or salary income” is the part of the decedent’s probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent’s personal expenses and support of survivors, excluding contributions in kind.

(Emphasis supplied.) Thus, proof of net accumulations requires not only a showing of “a fall in household income, but also that lower expenses did not offset the drop.” Barlow, 809 So.2d at 73.

In St. Mary’s Hospital, this Court held that the arbitration provisions of the Medical Malpractice Act specify the damages available when the parties agree to binding arbitration, regardless of whether the medical malpractice action involves a wrongful death. See 769 So.2d at 973. Specifically, we concluded:

The plain language of sections 766.202(3) and 766.207(7)(a) indicates that the full range of economic damages is available to claimants as an incentive to forego a jury trial on damages and proceed to arbitration. The legislative intent of the Medical Malpractice Act also indicates that the arbitration provisions were enacted to address soaring noneconomic damage awards, rather than the more predictable economic damage awards. See § 766.201. If the Legislature intended for the Wrongful Death Act to control the elements of damages available in a medical malpractice arbitration, it could have specifically provided for the application of the provisions of that Act in the Medical Malpractice Act. It has not done so.

Id. (emphasis supplied).

More recently we addressed whether Florida’s setoff statutes apply to damages awarded under the arbitration provisions of the Medical Malpractice Act. See Chester v. Doig, 842 So.2d 106 (Fla.2003). For similar reasons as those expressed in St. Mary’s Hospital, we concluded that it was not appropriate to set off the amount recovered from a settlement with one tort-feasor against the award of damages recovered in an arbitration with a second tortfeasor for the same incident. See id. at 108-09. In reaching this conclusion, we looked to the plain language of the Medical Malpractice Act and noted that the Legislature had chosen not to provide for the application of the setoff statutes to damages awarded in a medical malpractice arbitration. See id. at 109.

As our decisions in both St. Mary’s Hospital and Chester indicate, it is inappropriate to look beyond the language of the Medical Malpractice Act in determining the damages available to a claimant who agrees to proceed with binding arbitration as provided for under that Act. Nonetheless, NOMC asserts that because only net economic damages are recoverable under section 766.207(7)(a), the loss of $5000 in social security retirement benefits should be reduced to achieve a “net” amount and, therefore, looking to the definition of “net accumulation's” in the Wrongful Death Act for guidance is appropriate. We disagree.

The Legislature expressly provided that economic damages awarded as a result of medical malpractice arbitration are to be reduced in only two ways. First, a claimant is entitled to only 80. percent of wage loss and loss of earning capacity. See § 766.207(7)(a). Second, economic damages are to be offset by payments from those collateral sources expressly defined in section 766.202(2). See §§ 766.202(2), 766.207(7)(a). Thus, subject only to these reductions, claimants are entitled to a full range of economic damages, which include net “financial losses which would not have occurred but for the injury giving rise to the cause of action.” § 766.202(3) (emphasis supplied).

We recognize that during a 2003 special session, the Legislature amended section 766.207(7) to specify that “damages shall be awarded as provided by general law, including the Wrongful Death Act,” see ch.2003^416, § 62, at 4107, Laws of Fla., and amended the definitions of “economic damages” and “noneconomic damages’.’ as used in section 766.207(7), adding the phrase “to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act.” Id. § 58, at 4103-04.' However, these amendments became' effective September 15, 2003, see id. § 87, at 4122, and the Legislature has expressly stated in the substance of the legislation that “the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act.” Id. § 86, at 4122 (emphasis supplied). Thus, these amendments do not apply to Mrs. Barlow’s case and we express no opinion on their effect, if any, on damages now recoverable in medical malpractice arbitration proceedings.

The dissent asserts that the' changes to chapter 766 “refleet[ ] this subsequent Legislature’s interpretation of the original law and provide[ ] some additional support to the’ reasoning that St. Mary’s Hospital and its progeny were wrongly decided.” Dissenting op. at 661. However, these amendments were passed three years after this Court’s decision in St. Mary’s Hospital as part of comprehensive medical malpractice reform that the Legislature concluded was “necessary to alleviate the crisis relating to medical malpractice insurance.” Ch.2003-416, § 1, at 4036, Laws of Fla. There is no indication in the statutory language that the amendments were passed as a result of this Court’s decisions in St. Mary’s Hospital or Chester.

Because the amount of the social security benefit Mr. Barlow would have consumed had he lived is not an authorized deduction in determining Mrs. Barlow’s net economic damages under section 766.207, Florida Statutes (2002), we conclude that the First District erred in relying on the concept of net accumulations defined in the Wrongful Death Act when reviewing the economic damages awarded by the arbitration panel. Rather, Mrs. Barlow’s net loss of annual social security retirement benefits is the difference between what the Barlows were receiving before Mr. Barlow’s death and the amount Mrs. Barlow now receives. Mrs. Barlow’s recovery of this social security loss should be measured according to Mr. Barlow’s normal life expectancy unless there is evidence from which the arbitration panel could conclude that Mr. Barlow had a reduced life expectancy because of issues unrelated to the medical malpractice. Accordingly, we quash the First District’s decision to the extent it is inconsistent with this opinion and remand for further proceedings.

It is so ordered.

ANSTEAD, C.J., and WELLS, LEWIS, QUINCE, and CANTERO, JJ., concur.

BELL, J., dissents with an opinion.

BELL, J.,

dissenting.

I disagree with the majority’s interpretation of the Medical Malpractice Act for two reasons. First, the majority’s decision to award Mrs. Barlow the full amount of the decrease in social security benefits effectively reads the word “net” out of the statute. Second, I believe the damages available in voluntary arbitration under sections 766.209(4)(a) and 766.207(7) of the Medical Malpractice Act should be interpreted in conjunction with the Wrongful Death Act and made consistent with the damages available under sections 766.209(2) and 766.209(3)(a).

I. THE DEFINITION OF “NET”

Section 766.207(7)(a), Florida Statutes, provides for an award of “net economic damages.” Economic damages are defined in section 766.202(3). The relevant section states:

“Economic damages” means financial losses which would not have occurred but for the injury giving rise to the cause of action, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity.

§ 766.202(3), Fla. Stat. (2002). The Medical Malpractice Act does not define “net economic damages” or the term “net.”

The majority holds that in addition to noneconomic damages and an economic damage award for past and future lost services, Mrs. Barlow should also receive the full amount of the difference between the social security benefits that her husband was receiving while he was alive and the survivor benefits that she now receives. This difference amounts to approximately $5000 per annum. Ignoring what the social security system and other retirement programs recognize, the majority gives Mrs. Barlow more than the net economic damages she suffered. Along with the reduction in social security benefits her husband brought into the home, Mrs. Barlow’s total household expenses are reduced by the amount that Mr. Barlow no longer consumes. Therefore, to properly measure “net economic damages” in this case, this reduction in total household expenses must be deducted in some manner from the difference between the social security benefits Mr. Barlow once brought into the home to support both him and his spouse and the survivor’s benefits Mrs. Barlow now receives.

Mrs. Barlow’s argument, which the majority accepts, that she should receive the full amount of the lost social security benefits as a “financial loss[ ] which would not have occurred but for the injury giving rise to the cause of action,” § 766.202(3), Fla. Stat., without consideration of how much this amount should be reduced to produce a “net” financial loss, essentially reads the word “net” out of the statute. This position violates a cardinal rule of statutory construction. “It is a cardinal rule of statutory interpretation that courts should avoid readings that would render part of a statute meaningless.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 456 (Fla.1992). By accepting Mrs. Barlow’s argument, the majority renders the express statutory limitation on economic damages meaningless and thus reaches the wrong result. The majority reaches this incorrect conclusion as a direct result of its unwillingness to look to the Wrongful Death Act for guidance. By looking to the guidelines provided in the Wrongful Death Act, the meaning of the term “net economic damages” is easily interpreted.

II. GUIDANCE FROM THE WRONGFUL DEATH ACT

Also, I believe this Court should reconsider its broader position that the Wrongful Death Act does not control the elements of damages available in a wrongful death action brought under the Medical Malpractice Act. See St. Mary’s Hosp., Inc. v. Phillipe, 769 So.2d 961, 973 (Fla.2000). The Medical Malpractice Act is ambiguous in that it does not provide a definition of “net economic damages,” does not specifically detail the scope of recoverable damages, and does not specifically identify who may recover damages under the Act. The logical consequence of this ambiguity and this Court’s decision in St. Mary’s Hospital is that without the ability to resort to the Wrongful Death Act for guidance, damage awards in wrongful death actions brought pursuant to section 766.207 have been arbitrary and inconsistent with the Wrongful Death Act. See Chester v. Doig, 842 So.2d 106 (Fla.2003); St. Mary’s Hosp.; Barloiu.

In a 2003 special session, the Legislature corrected this inconsistency by amending section 766.207(7) to specifically require arbitrators to look to the Wrongful Death Act when awarding damages. Although this change is prospective only, it reflects this subsequent Legislature’s interpretation of the original law and provides some additional support to the reasoning that St. Mary’s Hospital and its progeny were wrongly decided. This Court has consistently recognized the propriety of considering a subsequent amendment to a statute in interpreting a prior statute when an amendment was enacted soon after a controversy arose. See Parole Comm’n v. Cooper, 701 So.2d 543 (Fla.1997); Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248, 1250 (Fla.1985) (holding that when an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof); Gay v. Canada Dry Bottling Co., 59 So.2d 788, 790 (Fla.1952) (“The court has the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation.”). In this case, the 2003 amendments to section 766.207(7) are supportive of a holding contrary to St. Mary’s Hospital. It is supportive of a more reasonable conclusion that the Legislature intended to maintain consistency between awards under the Medical Malpractice Act and the Wrongful Death Act.

The majority states that “[tjhere is no indication in the statutory language that the amendments were passed as a result of this Court’s decisions in St. Mary’s Hospital or Chester” Majority at 9. This statement nicely circumnavigates the clear evidence that the statute was specifically changed to correct the negative impact the St. Mary’s decision had upon the continued viability of voluntary binding arbitration. The text of chapter 2003-416 expressly states that the Legislature reviewed the findings and recommendations of the Governor’s Select Task Force on Healthcare Professional Liability Insurance and found that the Task Force had established that the medical malpractice crisis could be alleviated by enacting reforms. See ch. 2003-416, § 1(8) — (10), at 4035, Laws of Fla. That Task Force expressly recommended that the Legislature amend sections 766.202 and 766.207 to specifically state that “damages are recoverable in voluntary binding arbitration only if the claimant has the right to recover such damages under general law, including the Wrongful Death Act.” Governor’s Select Task Force on Healthcare Professional Liability Insurance 300 (2003). And the Legislature followed this recommendation by so amending sections 766.202 and 766.207. Significantly, this Task Force recommendation for statutory amendment was based on the following findings:

As a result of the St. Mary’s decision, the Task Force has found that defen- ' dants are no longer using arbitration as a means of resolving claims. In sum, the St. Mary’s opinion has made it impossible for defendants to offer to arbitrate in wrongful death cases. Those defendants that agree to arbitrate now find themselves at risk of arbitrators awarding damages that are not compen-sable under Florida law. One speaker to the Task Force cogently noted: “As a result of the St. Mary’s decision, the universe of claims in which an offer to arbitrate can reasonably be considered will be limited to these cases with a single claimant, or a decedent with no statutory survivors; with little or no economic damages; ironically, the cases which should not need the assistance of the arbitration mechanism to settle.” The Task Force finds that voluntary binding arbitration in Florida is effectively dead as a result of the St. Mary’s case.

Governor’s Select Task Force on Healthcare Professional Liability Insurance 300 (2003) (footnotes omitted). Contrary to the majority’s opinion, I find the express reference to the Task Force findings in the legislation, the Task Force finding that “voluntary binding arbitration in Florida is dead as a result of the St. Mary’s case,” and the actual amendment of the relevant statutory sections as recommended by the Task Force are important indications that the St. Mary’s decision was not a correct interpretation of the intent of the original legislation.

For the above reasons, in order to resolve the ambiguities contained in the Medical Malpractice Act that are at issue in this case and to avoid disparate treatment of wrongful death claims brought pursuant to section 766.207, I believe the Medical Malpractice Act is best interpreted in conjunction with the Wrongful Death Act.

Applying the applicable provisions of the Wrongful Death Act to this case, Mrs. Barlow would be entitled to lost support and services, and her husband’s estate would be entitled to Mr. Barlow’s prospective net accumulations. This result makes all four scenarios for the award of damages provided for in section 766.209 consistent. It is also the result after the new statutory amendments take effect. Therefore, I believe it is the correct result in this ease.

For the foregoing reasons, I respectfully dissent.

      . For the purposes of this opinion and consistent with our previous decisions in St. Mary's Hospital and Chester v. Doig, 842 So.2d 106 (Fla.2003), "Medical Malpractice Act” refers to sections 766.201 through 766.212, Florida Statutes (2002).

      . Before Mr. Barlow’s death, Mr. and Mrs. Barlow were receiving a combined annual social security benefit of $16,495.20. Since Mr. Barlow’s death, Mrs. Barlow now receives $11,292 in benefits, a decrease of approximately $5000. At the hearing, Mrs. Barlow argued that this loss of $5000 per year should be included in the calculation of economic damages.

      . Mrs. Barlow also argues that the First District erred in affirming the arbitration panel’s award of zero economic damages for loss of earning capacity. We decline to address this claim, which is beyond the scope of the conflict issue. See Kelly v. Comty. Hosp. of Palm Beaches, Inc., 818 So.2d 469, 470 n. 1 (Fla.2002).

      . As the majority notes on page 8 of their opinion, the Legislature amended section 766.207(7) during a 2003 special session. The new statute specifically provides that damages under the Medical Malpractice Act should be awarded as provided by the Wrongful Death Act. However, this statutory change applies prospectively only.

      . In addition to the $102,365.50 in economic damages mentioned in the majority opinion, Mrs. Barlow was awarded $240,000 in non-economic damages.

      . In St. Mary's Hospital, this Court consolidated two cases for review. See St. Mary’s Hosp., Inc. v. Phillipe, 699 So.2d 1017 (Fla. 4th DCA 1997), and Franzen v. Mogler, 699 So.2d 1026 (Fla. 4th DCA 1997). In St. Mary’s Hospital, the plaintiffs were allowed to recover for loss of the decedent's earning capacity, even though they would not have been entitled to such a recovery under the Wrongful Death Act. Similarly, in Mogler, the estate of the decedent was awarded lost wages instead of the net accumulations awardable under the Wrongful Death Act.

      . Although these amendments were passed as part of comprehensive medical malpractice reform, the only substantive changes made to the voluntary arbitration provisions are the ones requiring arbitrators to look to the Wrongful Death Act.

      . Four relevant scenarios are provided for in section 766.209, Florida Statutes:
      1. If neither the claimant nor the defendant requests or agrees to voluntary binding arbitration, the claim proceeds to trial under the Wrongful Death Act. See § 766.209(2) Fla. Stat.
      2. If the defendant refuses a claimant’s offer of voluntary binding arbitration, the claim proceeds to trial under the Wrongful Death Act. See § 766.209(3)(a) Fla. Stat.
      3. If a claimant rejects a defendant’s offer to enter into voluntary binding arbitration, the case proceeds to trial but the damages are limited to net economic damages, plus non-economic damages not to exceed $350,000 per incident. See § 766.209(4)(a) Fla. Stat.
      4.If both the defendant and the plaintiff agree to arbitration, the case is arbitrated and damages are limited to net economic damages and noneconomic damages of $250,000. See § 766.207(7)
      In scenarios one and two, the claim proceeds to trial and damages are awarded and divided among survivors, spouses, and the estate pursuant to the Wrongful Death Act. Under the St. Mary’s Hospital rationale, the same is not true for scenarios three and four.