author: MAIN, Judge.

text:
    Esaw JACKSON v. STATE of Alabama.
    CR-06-1398.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 2009.
    Rehearing Denied Feb. 19, 2010.

      Charles E. Caldwell, Birmingham; and, on application for rehearing, Alicia A. D’Addario and Randall S. Susskind, Montgomery, for appellant.
    Troy King, atty. gen., and Thomas Go-van, Jr., asst. atty. gen., for appellee.
   MAIN, Judge.

Esaw Jackson was convicted of three counts of capital murder for killing Pamela Montgomery and Milton Poole III. Jackson was convicted of capital murder for killing Montgomery by shooting her with a rifle fired from a vehicle, § 13A-5-40(a)(18), Ala.Code 1975; capital murder for killing Poole by shooting him with a rifle fired from a vehicle, § 13A-5-40(a)(18), Ala.Code 1975; and of capital murder for killing Montgomery and Poole during one act or pursuant to one scheme or course of conduct, § 13A-5-40(a)(10), Ala.Code 1975. Jackson was also convicted of two counts of attempted murder, see §§ 13A-4-2 and 13A-6-2, Ala.Code 1975, for shooting Denarius Montgomery and Shaniece Montgomery. Following the presentation of evidence at the penalty phase of the trial, the jury recommended, by a vote of 10 to 2, that Jackson be sentenced to death. The circuit court conducted a final sentencing hearing on March 16, 2007, and sentenced Jackson to death for his capital-murder convictions. The trial court also sentenced Jackson to consecutive terms of life imprisonment for the two attempted-murder convictions. Jackson filed a motion for a new trial, which was denied by operation of law on May 15, 2007. See Rule 24.4, Ala. R.Crim.P. This appeal, which is automatic when a defendant has been sentenced to death, followed. See § 13A-5-53(a), Ala. Code 1975.

The evidence adduced at trial indicated that on February 1, 2006, Pamela Montgomery and Milton Poole III were killed and Shaniece Montgomery and Denarius Montgomery were injured when a gunman opened fire on their automobile.

Loretta Poole testified that she was the mother of Milton Poole III. She stated that she lived in Ensley until the housing project in which she lived closed, at which time she moved to Smithfield. According to Loretta, the move would have required Milton to change schools, so they decided that he would stay with the Montgomery family so he could remain a student at Ensley High School. Loretta testified that she and Pamela Montgomery were close friends, and that Pamela brought Milton to Loretta’s house every evening so he could get a change of clothes and they could spend some time together, before taking him back to the Montgomery residence.

Loretta further testified she was familiar with Jackson, whom she referred to as “Wolf,” from living in the area. She testified that approximately two weeks before the shooting, she and a group of people were playing cards at her house. She stated that Jackson was outside her house and got into an argument with one of the people at her house because he believed that person was repeatedly calling his cellular telephone. According to Loretta, she told him nobody in her house was calling him.

Loretta testified that approximately one week after that confrontation, she was walking to the store with another person when they encountered Jackson and Jackson spoke to her friend. Loretta stated:

“And him and her made conversation, and we were still walking along. So they stopped talking, so I looked over at him, and I said — I say, ‘Esaw,’ I said, ‘why you rolling your eyes and acting like that toward me.’ I said, ‘what I done to you?’ He said, “You ain’t did a damn thing to me.’ I said, Well, what’s the problem, then?’ I said — he said, You know what, I ain’t got no problem with you; not for real. I just don’t like your ass.’ I said, ‘You don’t like me.’ He said, ‘No.’ He said, ‘I want you to move.’ I said, You want me to move?’ I said, Well, I am,’ I said, ‘as soon as I can, because my Section Eight [Government Housing Program] came through where we can find it, and I’m trying to wait on my baby.’ He said, You know what? You are going to find something, because I’m going to make you move.’ I said, ‘How you going to make me move?’ He said, ‘I’m going to do something to hurt you.’ I said, Well, like what?’ You know, at first, I thought he was teasing. And I looked at him. I said, ‘Like what?’ He said, ‘I’m going to do something to hurt you.’ And he said, What I’m going to do to hurt you, you ain’t got no choice but to move.’ I said, Why?’ He said, ‘It’s going to hurt you so bad, you tell — you—after he said what I’m going to do,’ he said — (witness crying)_ — You ain’t going to be able to take it,’ he said, ‘because I’m going to come around.’ He said, ‘I’m going to turn around and do something to hurt you. They ain’t going to do a damn thing.’ He said, You going to know I did, and I’m going to know I did.’ He said, ‘I will drive up and down this alley, selling my drugs like I normally do, and when I get to your house,’ he said, ‘when I get to your house — ’ God knows he did — he said, ‘I’m going to sit right there, turn my music up louder, and wait until you to come to the door.’ And he said — ‘And every time you see me, it’s going to make you cry, going to hurt you so bad you ain’t going to have no choice but to move. You going to be looking at me, know what I did and got away with it.’ He told me that.”

(R. 56-57.) She stated that that conversation took place “within a week or two, no longer; wasn’t quite two weeks” before the shooting.

A-Kia Hicks testified that she was walking with Loretta and heard Jackson tell Loretta that “he was going to do something to hurt her and make her move, and he was going to — he was going to come through the — where she stay at, every day, and turn his music up when he get by her apartment, and it wasn’t going to be nothing that she could do about it, and he was going to get away with whatever he was going to do.” (R. 250.)

Melanie Torrence testified that she knew Jackson as “Wolf.” She identified State’s exhibit 22 as a photograph of his automobile. She testified about a confrontation between “Wolf’ and an individual at the Poole residence approximately two weeks before the shooting where “Wolf’ accused the person of calling his cellular telephone. According to Torrence, she saw Jackson on the morning of the shootings, and overheard him say something about his cousin “Pig” buying a gun; Tor-rence stated that Jackson indicated to her that he and his cousin were going to shoot “a new SK or something — some type of gun like that.” (R. 132.)

The State’s evidence further indicated that on the evening of the shooting, the four victims left Loretta’s residence at approximately 8:30 p.m. to return to the Montgomery residence; Pamela was driving; Shaniece was in the front passenger seat; Denarius was in the backseat on the driver’s side; and Milton was in the backseat on the passenger side.

Denarius Montgomery testified that when they left Loretta’s residence, he noticed Jackson’s automobile parked down the alley, with Jackson in the driver’s seat and two other individuals in the automobile. Denarius testified that as they were driving home, they were stopped at a red light at an intersection. Denarius stated that there was an automobile in front of them and an automobile behind them. He also testified that there was an automobile beside them. According to Denarius, another automobile pulled up beside them. He stated that he heard someone in that automobile yell “Bitch” so he looked over and saw Jackson driving that automobile. Denarius further stated that Jackson was pointing a gun at their automobile and that he opened fire. He further testified that they were unable to drive away from the gunfire because other automobiles were also stopped in front of them, behind them, and beside them. According to Denarius, he, his mother, Shaniece, and Milton all exclaimed that they had been hit by gunfire. Denarius further testified that Milton said that “Wolf’ was the one doing the shooting; Denarius also testified that he was aware before Milton’s remark that “Wolf’ was the gunman. Denarius stated that the gunman’s automobile turned right and drove away and that they began to drive to the fire station to get assistance. He testified that his mother drove a few blocks before she lost consciousness near Holy Family Elementary School and that his sister climbed into their mother’s lap and drove the final blocks to the fire station. Denarius stated that he went to the door of the firehouse, but nobody was there, and that the firemen returned from a call a few minutes later and began treating them. According to Denarius, he was shot in the hand and the leg, and he also sustained injuries to his arm from metal fragments. Finally, Denarius identified Jackson at trial as the person referred to as “Wolf.”

On cross-examination, Denarius stated that they had not noticed anyone following them when they left the Poole residence. He further stated that he saw gunfire from the front seat and from the backseat of the gunman’s automobile. According to De-narius, after the gunfire, an automobile that was behind them — not the gunman’s automobile — followed them as far as Holy Family, but then drove away. Denarius testified that he did not recall telling the police that an 18-wheeler was beside them at the light or that he could not identify the shooter.

Shaniece Montgomery testified that she had seen “Wolf’ near Poole’s residence one or two times before. Her testimony regarding the events at the red light and the subsequent drive to the fire station were substantially similar to Denarius’s testimony set out above. She also testified that the automobile looked like a dark Buick Century, but that it was nighttime and she was not sure. She identified State’s exhibit 22 as a photograph of “Wolfs” automobile. According to Shan-iece, she had been shot four times, and she still had a bullet near her spine that the doctors had not removed. She stated that “Wolf’ and Milton previously had a disagreement in which “Wolf’ had accused Milton of stealing his dog. She identified Jackson at trial as the person she referred to as “Wolf.”

Lisa Davis testified that she worked at the BP gasoline station at the corner of 19th Street and Avenue V in Smithfield, the intersection where the shooting occurred. According to Davis, she heard gunfire and telephoned one of the police officers assigned to that area. She stated that from her vantage point she was unable to identify which automobiles or individuals were involved in the shooting and that she did not see Jackson at the scene.

Officer John Ballard of the Birmingham Police Department testified that he received a call from Davis and responded to the scene. He testified that he began speaking with bystanders at that location when he heard a report on his police radio that the victims were at the fire station, so he proceeded to that location. Officer Ballard testified that he spoke with Denarius and asked him what happened and who did it, Denarius stated in response that ‘Wolf did it.” (R. 36.) Officer Ballard described Denarius’s demeanor as stressed, agitated, or scared.

The State’s evidence indicated that Milton was pronounced dead at the fire station and that Pamela died a short time after being transported to the hospital. Dr. Greg Davis testified that he was the associate coroner and that he was the medical examiner who performed the autopsies on the victims. According to Dr. Davis, Milton had a grazing gunshot wound to his forehead; another gunshot wound where a bullet passed through his right arm, into his chest, right lung, heart, and left lung; and a third gunshot wound where a bullet passed through his right hip and exited through his right buttock. He stated that some of Milton’s injuries were consistent with the bullet striking an intermediate target such as a car door before striking Milton. He further stated that he recovered one projectile from Milton’s body.

Dr. Davis testified that Pamela suffered four gunshot wounds; one struck her diaphragm and liver; one was higher on her torso and more toward her back; one went into her chest, fracturing ribs; and the fourth went into her chest, striking her right lung. He stated that he recovered four projectiles from her body and a fifth projectile from her sweater. According to Dr. Davis, the nature of her injuries would have likely resulted in a loss of consciousness after a few seconds or a minute or so.

Officer Kim McDonald of the Birmingham Police Department testified that she was the evidence technician who photographed the scene. She stated that bullet fragments were recovered from the car and that shell casings and glass were recovered from the scene of the shooting. According to Officer McDonald, there were approximately 10-15 holes or defects that were discernible on the doors or side of the vehicle. She further indicated that the windows had been shot out but there was no way to determine how many bullets had entered the vehicle through the windows. She stated that one of the casings recovered from the scene was a 7.62 x 39 casing for an assault rifle.

Mitch Rector testified that he was a firearm and tool mark examiner for the Birmingham Police Department. According to Rector, the projectiles recovered from the victims’ bodies were consistent with .30 caliber, 7.62 mm projectiles. He indicated that the casing recovered from the roadway scene where the shooting occurred was a .39 caliber, 7.62 mm casing. He further stated that the casings and projectiles recovered from the scene, the automobile, and the victims’ bodies were similar, but that he could not determine whether they had been fired from the same barrel. He did testify that there were no inconsistencies present that caused him to believe otherwise, only that he was unable to make an affirmative determination because the fragments did not contain sufficient markings to make such a determination.

Brandon Carter testified for the defense that Jackson picked him up from work on the day of the shootings and that he, Milton Edwards, and Jackson were riding around in Jackson’s automobile when they stopped at a red light. According to Carter, they were behind the victims and saw the shooting, and that the gunman was in a blue Toyota Tercel or Corolla automobile. Carter stated that the gunman turned right at the light, but that Jackson followed the victims’ automobile for a couple of blocks until the victims pulled into Holy Family Elementary School. Carter stated that Jackson took him home. He conceded that he told the police the following morning that he had not been in the automobile with Jackson; according to Carter, he did not want to get involved. He identified State’s exhibit 22 as a photograph of Jackson’s automobile.

Barbara Jackson, Jackson’s mother, testified. She stated that Jackson left her house around 4:40 p.m. on the day of the murders and returned at approximately 9:00 p.m. that same evening. She further testified that when he returned, Jackson said, “Mama, we witnessed a shooting.” (R. 281.) She stated that Jackson told her that Milton Edwards and Brandon Carter were in the car with him, and that there was no further conversation about the shooting. She testified that approximately 15 minutes later a “repo truck” came by the house and that she believed Carter got into the truck and left. Finally, she stated that Jackson took Edwards home sometime between 11:30 p.m. and 11:45 p.m.

I.

Jackson first argues that the penalty of death by lethal injection is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. In his brief, Jackson presented only a general challenge to the constitutionality of the death penalty. At oral arguments, Jackson indicated that he had an argument prepared with regard to this issue, but conceded that the recent decision by a majority of the United States Supreme Court in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), was adverse to his position. He asserted that the dissent filed by Justice Ginsburg, and joined by Justice Souter, was supportive of his position with regard to the protocol, procedure, and administration of the lethal injection as a means of effectuating the death penalty.

This issue has been addressed by recent opinions from this Court. In Saunders v. State, 10 So.3d 53 (Ala.Crim.App.2007), this Court stated:

“The United States Supreme Court has held that the imposition of the death penalty as a sentence for capital murder is not per se unconstitutional. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). In addition, Alabama’s capital-murder statute has been upheld against a variety of constitutional challenges. See, e.g., Clark v. State, 896 So.2d 584 (Ala.Crim.App.2000), and cases cited therein. This Court has also held that lethal injection does not constitute per se cruel and unusual punishment. See, e.g., McNabb v. State, 991 So.2d 313 (Ala.Crim.App.2007), and cases cited therein. Therefore, Saunders’s general claim that the death penalty constitutes cruel and unusual punishment is meritless.”

10 So.3d at 111. Further, as this Court recently stated:

“‘[C]ourts have repeatedly held that the death penalty is not per se cruel and unusual punishment and that electrocution is not a cruel and unusual method of capital punishment. See Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Williams v. State, 627 So.2d 985 (Ala.Crim.App.1991), aff'd, 627 So.2d 999 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994); Boykin v. State, 281 Ala. 659, 207 So.2d 412 (1968), rev’d on other grounds, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).’
“Wynn v. State, 804 So.2d 1122, 1148 (Ala.Crim.App.2000). Also, in Ex parte Belisle, 11 So.3d 323, 339 (Ala.2008), the Alabama Supreme Court addressed the United States Supreme Court’s decision in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), and ‘eon-clude[d] that Alabama’s use of lethal injection as a method of execution does not violate the Eighth Amendment to the United States Constitution.’ Therefore, Newton’s argument is without merit.”

Newton v. State, [Ms. CR-05-1517, October 2, 2009] — So.3d -, - (Ala.Crim.App.2009). See also Lewis v. State, 57 So.3d 807 (Ala.Crim.App.2009). Jackson has presented no arguments that support a different conclusion, nor does our research reveal any such basis. Therefore, Jackson is not entitled to any relief on this claim.

II.

Jackson also argues that charging him with three counts of capital murder was multiplicitous and that his resulting convictions and sentence of death for all three counts violated principles of double jeopardy.

Similar arguments have been addressed and found meritless by the appellate courts of this State. In Ex parte Peraita, 897 So.2d 1227 (Ala.2004), the Alabama Supreme Court stated:

“Peraita argues that both state and federal law prohibit a state from subjecting a defendant to double jeopardy, and that the indictment charging him sought to exact ‘multiple prosecutions’ for the same offense. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
“The Blockburger test is aimed at, among other things, ‘ “multiple punishments imposed in a single prosecution.”’ Grady v. Corbin, 495 U.S. 508, 516-17, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) (quoting Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985)). Peraita argues that conviction of two counts of capital murder for the killing of a single person constitutes such multiple punishment. He cites Meyer v. State, 575 So.2d 1212 (Ala.Crim.App.1990), and Ex parte Rice, 766 So.2d 143 (Ala.1999), for the proposition that multiple charges from the same statute violate double-jeopardy principles.
“The defendant in Meyer was charged with capital murder and indicted for three counts of capital murder for the killing of one person. His indictment alleged that he committed the murder while committing robbery of three separate items. The Court of Criminal Appeals held that these three allegations were merely three ‘ “alternative methods of proving the same crime, and therefore, did not constitute separate offenses.” ’ Meyer, 575 So.2d at 1217 (quoting Sisson v. State, 528 So.2d 1159, 1162 (Ala.1988)).
“In Rice, the defendant was charged with two counts of capital murder for the killing of one individual during a robbery and a kidnapping; he was convicted of two counts of ‘the crime of murder’ under Ala.Code 1975, § 13A-6-2(a)(3), specifically the lesser-included offense of felony murder. This Court held that, much like Meyer and Sisson, each count in Rice was an alternative method of proving but a single crime.
“In contrast to Meyer and Rice, the two capital-murder charges against Per-aita are separate offenses. Each count of capital murder is a separate offense, as shown by the beginning of the statute defining capital offenses, which provides, ‘The following are capital offenses.’ Ala. Code 1975, § 13A-5-40(a). So long as each count of the crime concerns a separate offense, as opposed to a separate method of proving that offense, the double-jeopardy provision of the United States Constitution is not implicated. We hold that Peraita’s right to be free from double jeopardy was not violated by his having been tried and convicted of two counts of capital murder for the killing of one individual.”

897 So.2d at 1236. See also Lewis v. State, 57 So.3d 807 (Ala.Crim.App.2009); Brooks v. State, 973 So.2d 380 (Ala.Crim.App.2007); and Williams v. State, 710 So.2d 1276 (Ala.Crim.App.1996).

Here, each capital-murder conviction required an element not required in the other convictions. One count required that Jackson intentionally killed Pamela Montgomery by shooting her while he was in an automobile; one count required that Jackson intentionally killed Milton Poole III by shooting him while he was in an automobile; and one count required that Jackson intentionally killed Montgomery and Poole by one act or pursuant to one scheme or course of conduct. Thus, his argument is without merit, and Jackson is not entitled to any relief on this claim.

III.

Finally, Rule 45A, Ala.R.App.P., requires this Court to review the record for any plain error with respect to Jackson’s capital-murder convictions.

Rule 45A, Ala.R.App.P., provides:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

“ ‘Plain error is defined as error that has “adversely affected the substantial right of the appellant.” ’ ” Ex parte Brown, 11 So.3d 933, 935 (Ala.2008), quoting Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999). It is error “ ‘ “so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.” ’ ” Saunders v. State, 10 So.3d 53, 74 (Ala.Crim.App.2007), quoting Ex parte Womack, 435 So.2d 766, 769 (Ala.1983), quoting in turn United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981).

“ ‘The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is “particularly egregious” and if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Crim.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Crim.App.1992), rev’d on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Crim.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993).’
“Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala.2001). Although the failure to object will not preclude our review, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992).”

Sale v. State, 8 So.3d 330, 345 (Ala.Crim.App.2008).

We find no plain error or defect in the proceedings during the guilt phase of Jackson’s trial.

Further, § 13A-5-53, Ala.Code 1975, requires that this Court review the propriety of the death sentence imposed in this case.

“This review shall include the determination of whether any error adversely affecting the rights of the defendant was made in the sentence proceedings, whether the trial court’s findings concerning the aggravating and mitigating circumstances were supported by the evidence, and whether death was the proper sentence in the case.”

§ 13A-5-53(a), Ala.Code 1975. In determining whether death was the appropriate sentence in this case, we must determine: (1) whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether an independent weighing by this Court of the aggravating circumstances and mitigating circumstances indicates that death is the proper sentence; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in other similar cases, considering both the crime and the defendant. See § 13A-5-53(b), Ala.Code 1975.

Here, the trial court conducted a separate sentencing hearing in accordance with §§ 13A-5^45 and -46, Ala.Code 1975. After hearing evidence of the aggravating circumstances and mitigating circumstances and being instructed on the applicable law and its role and duties in the sentencing process, the jury recommended, by a vote of 10 to 2, that Jackson be sentenced to death. The trial court, in accordance with § 13A-5-47, Ala.Code 1975, ordered and received a presentence investigation report and conducted another hearing to aid it in determining whether to sentence Jackson to life imprisonment without parole or to death. In its sentencing order, the trial court entered specific, written findings as to each aggravating circumstance enumerated in § 13A-5-49, Ala.Code 1975; the nonexistence of each of the mitigating circumstances enumerated in § 13A-5-51, Ala.Code 1975; and the nonstatutory mitigating circumstances it found to exist under § 18A-5-52, Ala.Code 1975. The trial court’s written sentencing order also contained written findings of fact summarizing the crime and Jackson’s participation in it.

The trial court found the existence of two statutory aggravating circumstances: (1) that Jackson knowingly created a great risk of death to many persons, see 13A-5-49(3), Ala.Code 1975; and (2) that Jackson intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct, see § 13A-5-49(9), Ala.Code 1975. The trial court found no statutory mitigating circumstances in § 13A-5-51, Ala.Code 1975. The trial court found and considered as nonstatutory mitigating circumstances:

“1. [Jackson] is a great father to his son whom he loves and provides for.
“2. [Jackson] is good hearted person and everyone in the neighborhood really loves him. [Jackson] treats his baby’s mama well and has never been violent towards her. He also treats the daughter of his baby’s mama well as if she were his own child.
“3. [Jackson] gives kids money in front of the mission.
“4. [Jackson] drives his elderly neighbor to the store.
“5. [Jackson] gave people money and told them not to worry, about paying it back.
“6. [Jackson] has been very helpful to his mother.
“7. [Jackson’s] mother, his baby’s mama, his sister and friends all love him. He has been a good provider to his baby’s mama.
“8. [Jackson] gets a disability check for an alleged physical disability, and gives money to those who need it.
“9. [Jackson] never knew his real father, and had a 9th grade education.”

(C. 49.)

The trial court’s sentencing order reflects the following:

“In determining the sentences herein, the Court has not been influenced by any references or expressions of community sentiment that have been made. Moreover, the Court has not considered, and has not been influenced by, any improper matters that may be contained in the pre-sentence report. Upon considering and weighing the aggravating circumstances against the mitigating circumstances, the Court finds that the aggravating circumstances greatly outweigh the mitigating circumstances. The Court considered the evidence presented by [Jackson] at the sentencing hearing, where the jury participated, as evidence of nonstatutory mitigating factors. Considering the fact that [Jackson] had several family members testify on his behalf all of whom appeared to genuinely love and care for [Jackson], it would be a stretch to find that [Jackson’s] background was one of total deprivation. Having weighed the statutory aggravating circumstances against all of the nonstatutory mitigating circumstances, and having given careful consideration and substantial weight to the evidence and the jury’s advisory recommendation, the Court finds that the aggravating circumstances in these cases outweigh the mitigating circumstances and that the punishment should be death, in accordance with the jury’s recommendation of ten (10) for death and two (2) for life without parole, with respect to each conviction of Capital Murder as charged in the indictments.”

(C. 50.)

Pursuant to the requirements of § 13A-5-53(a), we have reviewed the record of the sentencing proceedings and find no error, plain or otherwise, adversely affecting Jackson’s rights. We find no evidence that the sentence of death was imposed under the influence of any passion, prejudice, or other arbitrary factor. The trial court’s findings concerning the aggravating circumstances and mitigating circumstances are supported by the record. Further, this Court has independently weighed the aggravating circumstances against the mitigating circumstances, and we concur with the trial court’s conclusion that the aggravating circumstances outweigh the mitigating circumstances, and we agree that death was the proper sentence in this case. Finally, considering the crime committed and considering Jackson, we find that the sentence of death in this case is neither excessive nor disproportionate to the penalty imposed in other similar cases. See McGriff v. State, 908 So.2d 961 (Ala.Crim.App.2000), reversed on other grounds, 908 So.2d 1024 (Ala.2004) (upholding death sentence for murder by use of a deadly weapon fired from a motor vehicle); Lewis v. State, 57 So.3d 807 (Ala.Crim.App.2009) (upholding death penalty for murder by use of a deadly weapon fired from a motor vehicle); Mills v. State, 62 So.3d 553 (Ala.Crim.App.2008) (opinion on return to remand) (upholding death penalty for murder of two or more persons); and Brownfield v. State, 44 So.3d 1 (Ala.Crim.App.2007) (upholding death penalty for murder of two or more persons).

For the foregoing reasons, Jackson’s capital-murder convictions and his sentence of death are hereby affirmed. Jackson’s convictions and consecutive sentences of life imprisonment for two counts of attempted murder are also affirmed.

AFFIRMED.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.

      .This case was originally assigned to another judge on this Court; it was reassigned to Judge Main on May 15, 2009. Although he was not a member of the Court on June 24, 2008, when oral arguments were conducted, he has reviewed the tape of oral arguments.

      . Jackson also filed a written notice of appeal with regard to each of his convictions, including the attempted-murder convictions.

      . A number of witnesses referred to Milton Poole III as "Three." For purposes of this opinion, this Court will refer to him as "Milton.”

      . Denarius testified that he also saw what looked to be another gun pointed at them from the backseat of Jackson’s automobile.

      . In his brief, Jackson cites legal authority derived from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). At oral argument, Jackson further asserted that the principles espoused in Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), Ex parte Sisson, 528 So.2d 1159 (Ala.1988), Ex parte Rice, 766 So.2d 143 (Ala.1999), and Ex parte Robey, 920 So.2d 1069 (Ala.2004), supported his conclusion.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte Esaw JACKSON. (In re Esaw Jackson v. State of Alabama).
    1090679.
    Supreme Court of Alabama.
    Sept. 24, 2010.

      Randall S. Susskind and Alicia A. D’Ad-dario, Equal Justice Initiative, Montgomery, for petitioner.
    Troy King, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent.
   WOODALL, Justice.

Esaw Jackson was convicted of three counts of capital murder for (1) killing Pamela Montgomery by shooting her with a rifle fired from a vehicle, see § 13A-5-40(a)(18), Ala.Code 1975; (2) killing Milton Poole III by shooting him with a rifle fired from a vehicle, see § 13A-5-40(a)(18), Ala. Code 1975; and (3) killing Montgomery and Poole during one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975. He was also convicted of two counts of attempted murder for shooting Denaris Montgomery and Shanieee Montgomery.

The jury recommended, by a vote of 10-2, that Jackson be sentenced to death for the capital-murder convictions. After a sentencing hearing, the trial court sentenced Jackson to death. The trial court also sentenced him to consecutive terms of life imprisonment for the two attempted-murder convictions. After Jackson’s motion for a new trial was denied by operation of law, he appealed.

The Court of Criminal Appeals affirmed Jackson’s convictions and sentences. Jackson v. State, 68 So.3d 201 (Ala.Crim. App.2009). Jackson raised only two issues on appeal to the Court of Criminal Appeals, both of which related solely to his capital-murder convictions. The Court of Criminal Appeals rejected his argument “that the penalty of death by lethal injection is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.” Jackson, 68 So.3d at 206. That court also rejected his argument “that charging him with three counts of capital murder was multiplicitous and that his resulting convictions and sentence of death for all three counts violated principles of double jeopardy.” Jackson, 68 So.3d at 207. Further, as required by Rule 45A, Ala. R.App. P., the Court of Criminal Appeals reviewed the record for any plain error or defect in the proceeding and found none during either the guilt phase or the sentencing phase of Jackson’s trial. After the Court of Criminal Appeals overruled his application for a rehearing, Jackson, through new counsel, petitioned this Court for certiorari review of the capital-murder convictions and sentences of death that the Court of Criminal Appeals affirmed.

Rule 39(a)(2)(A), Ala. R.App. P., provides that, in a death-penalty case, “a petition for writ of certiorari will ... be considered from a decision failing to recognize as prejudicial any plain error or defect in the proceeding under review whether or not the error or defect was brought to the attention of the trial court or the Court of Criminal Appeals.” In his petition for cer-tiorari review, Jackson presents several issues that, according to him, warrant plain-error review. See Rule 39(a)(2)(B), Ala. R.App. P. We granted his petition to consider four of those issues.

“Plain error is defined as error that has ‘adversely affected the substantial right of the appellant.’ ” Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999) (quoting Rule 45A, Ala. R.App. P.), aff'd, 820 So.2d 152 (Ala.2001). “Plain error is ‘error so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.’” Ex parte Walker, 972 So.2d 737, 742 (Ala.2007) (quoting Ex parte Trawick, 698 So.2d 162, 167 (Ala.1997)). “To rise to the level of plain error, the claimed error must not only seriously affect a defendant’s ‘substantial rights,’ but it must also have an unfair prejudicial impact on the jury’s deliberations.” Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998), aff'd, 778 So.2d 237 (Ala.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001). Plain-error review “is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ ” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). “Although the failure to object will not preclude [plain-error] review, it will weigh against any claim of prejudice.” Sale v. State, 8 So.3d 380, 345 (Ala.Crim.App.2008).

In its opinion, the Court of Criminal Appeals summarized much of the trial testimony, and there is no need to repeat most of that discussion. On February 1, 2006, Pamela Montgomery was operating her automobile; in the vehicle with her were her children, 17-year-old Denaris and 21-year-old Shaniece, as well as 16-year-old Milton Poole III, a family friend. While Pamela was stopped at an intersection, someone fired many rounds from an assault rifle into her vehicle, killing Pamela and Milton and injuring Denaris and Shan-iece. Denaris testified that he had seen Jackson drive up beside his mother’s car and open fire. Shaniece was not able to identify a shooter. Brandon Carter, a defense witness, testified that he was in Jackson’s vehicle at the time of the shooting and that the shots were fired from another vehicle, not by Jackson.

Milton’s mother was Loretta Poole. She was acquainted with Jackson, who lived in the same area she lived in. Loretta testified, as stated in Jackson, 68 So.3d at 202, that, approximately two weeks before the shooting, Jackson had told her that he did not like her and that he was going to make her move from the area by “hurt[ing] [her] so bad” that she “ain’t going to have no choice but to move.” However, the Court of Criminal Appeals’ opinion does not address all Loretta’s testimony concerning what the State describes as Jackson’s “vague and cryptic threat.” State’s brief, at 21. Some of Jackson’s claims of plain error relate to the testimony not addressed by the Court of Criminal Appeals.

During the guilt phase of Jackson’s trial, Loretta, on direct examination, gave the following testimony:

“Q. [PROSECUTOR:] Okay.
“A. [LORETTA:] But I thought he was talking about doing something to ‘me.’ I asked still, ‘What you going to do?’ He said, ‘Never f- mind what I’m going to do.’ He said, ‘Because what I’m going to do,’ he said, ‘you know, you ain’t going to be able to take it.’
“Q. Okay.
“A. And he don’t lie. He didn’t lie. I ain’t able to take it. (witness crying)
“Q. Okay.
“A. He killed my child.
“Q. Okay. Hang on. Hang on. Hang on. Just take a minute. Take a minute. Take a minute.
“A. Oh, God help me.
“Q. Take an easy breath.
“A. Help me, Jesus. Help me, God.
“Q. Breathe.
“A. Help me, Lord Jesus, Jehovah; please help me.
“Q. Ma’am — okay?
“A. Thank you, Jesus.
“Q. Let me ask you a question. You okay? You okay?
“A. I never be okay anymore.
“Q. All right. Well, let me ask you one more question, and I will be done. Okay?
“A. Okay.
“Q. Okay?
“A. Go ahead.
“Q. All right. About how long before [Milton] was killed did that conversation take place?
“A. Within a week or two, no longer; wasn’t quite two weeks.
“Q. Okay.
“A. It was early one morning. I won’t forget it.
“Q. Okay.
“A. He was riding along the side, and he started coming by the house and stuff, flashing a whole lot of l’s in the windows, and you know, we be out in the yard, and he just come back peeking (sic), doing the peeking things (sic), you know.
“Q. Okay.
“A. Peeking things. And I paid no attention. I thought he was talking about doing something to me. But then when he said I wasn’t going to be able to take it, I didn’t have no idea he was talking about killing my child, until the night he did it, when my child told me—
“[DEFENSE COUNSEL]: We are going to object to this, non-responsive; not been a question asked in fifteen minutes.
“[PROSECUTOR]: Hold on.
“THE WITNESS: Because it wasn’t your child killed. It wasn’t your child killed, (witness crying)
“THE COURT: Hang on, ma’am. Listen to the question.
“THE WITNESS: Oh, it hurts so bad.
“THE COURT: I know it does. Just hang on just for a second. Just close your eyes and think about Jesus for a second. Just hang on just a second.”

(Emphasis added; parenthetical language original.) This emotional, mostly nonre-sponsive testimony forms the basis for some of Jackson’s claims of plain error.

Jackson correctly observes that “Loretta Poole ... was permitted to provide extremely emotional testimony regarding her opinion of [Jackson’s] guilt, despite the fact that she had no personal knowledge of the identity of the shooters.” Jackson’s brief, at 8. Loretta was not at the scene of the shooting; nevertheless, she twice expressed her opinion that Jackson had killed her son. Such testimony from a lay witness was clearly inadmissible. Rule 701, Ala. R. Evid., provides, in pertinent part, that a lay “witness’s testimony in the form of opinions or inferences is limited to those opinions and inferences which are ... rationally based on the perception of the witness.” “The Advisory Committee’s Notes on [this] portion of Rule 701 ... indicate that ‘[t]his is no more than a restatement of the “firsthand knowledge rule,” found in Ala. R. Evid. 602, tailored to opinions. No lay witness may give an opinion based upon facts that the witness did not actually observe.’ ” Musgrove Constr., Inc. v. Malley, 912 So.2d 227, 239-40 (Ala.Civ.App.2003). See also Lewis v. State, 889 So.2d 623, 646 (Ala.Crim.App.2003).

Jackson argues that Loretta’s “extraordinarily prejudicial testimony was improper because it went to the ultimate issue in this case — whether [he] had shot ... Milton and the others in the car with him.” Jackson’s brief, at 8 (emphasis added). Although the only disputed issue at trial was whether Jackson had fired a weapon into the vehicle occupied by the victims, Loretta’s statements were inadmissible, regardless of whether they are properly characterized as going to the ultimate issue to be decided by the jury. Rule 704, Ala. R. Evid., states: “Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.” (Emphasis added.) As previously discussed, Loretta’s opinions were not “otherwise admissible,” because they did not satisfy the requirements of Rule 701. “If the witness has no personal or firsthand knowledge, then lay opinion should be excluded whether or not it concerns an ultimate issue.” Charles W. Gamble & Robert J. Goodwin, McElroy’s Alabama Evidence § 127.01(6) at 720 (6th ed. 2009) (footnote omitted). Loretta, who was not present at the crime scene, should not have been allowed to testify that it was Jackson who had killed her son. Under the facts of this case, the significance of the issue embraced within Loretta’s opinions is relevant to whether a substantial right of Jackson’s has been affected, but not to the admissibility of the opinion.

According to the State, “[t]here cannot be a serious argument that the jury would have perceived [Loretta’s] emotional outburst as preempting [its] role as fact finder.” State’s brief, at 22. However, during his guilt-phase closing argument, the prosecutor sought to benefit from Loretta’s inadmissible conclusions. He stated: “Loretta Poole knows that Esaw Jackson did it. I guarantee you she’s convinced beyond a reasonable doubt that man killed her son. I guarantee she is convinced beyond a reasonable doubt that Esaw Jackson killed Pam Montgomery.” It was, of course, the jury’s responsibility to determine whether the State had carried its burden to prove that Jackson had intentionally killed the victims, and Loretta’s inadmissible opinion testimony concerning that issue should not have been before the jury as it fulfilled that responsibility. Indeed, “[t]he admission of these emotionally charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases.” Booth v. Maryland, 482 U.S. 496, 508-09, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), overruled in nonrelevant part, Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

The State argues that any error in admitting Loretta’s testimony giving her opinion that Jackson killed her son “was harmless error given the overwhelming evidence of guilt presented at Jackson’s trial.” State’s brief, at 27. However, “the proper inquiry here is not whether evidence of the defendant’s guilt is overwhelming but, instead, whether a substantial right of the defendant has or probably has been adversely affected.” Ex parte Lowe, 514 So.2d 1049, 1050 (Ala.1987). At any rate, the evidence of Jackson’s guilt was far short of overwhelming. Indeed, during his closing argument, the prosecutor acknowledged that the “whole case, quite honestly, boils down to Denaris,” the only eyewitness to identify Jackson as the shooter. There was no physical evidence to connect Jackson to the shooting, and the State never found the murder weapon.

The State argues that “[ejvidence was presented that Jackson planned and carried out this shooting attack after he had instigated several altercations with Loretta Poole, Milton’s mother, and her acquaintances.” State’s brief, at 28. As previously discussed, there was evidence indicating that Jackson made what the State describes as “cryptic threats” toward Loretta approximately two weeks before the shooting. However, according to Loretta, Jackson merely harassed her in the days that followed the threats, doing her no physical harm. Before Jackson’s threats toward Loretta, he had argued with someone who happened to be at Loretta’s house at the time, but there was no physical violence involved. According to Shaniece Montgomery, Jackson had, at some unspecified time, accused Milton of stealing Jackson’s dog, but there is no evidence concerning the outcome of any dispute regarding that accusation. Finally, although there was testimony that Jackson had been seen both driving and parked near Loretta’s residence on the night of the shooting, such activities were, by Loretta’s own admission, not unusual.

In her testimony, Loretta did more than simply express her opinion as to Jackson’s guilt. She also, while crying, described how badly her son’s death had affected her: “I ain’t able to take it”; “I never be okay anymore”; “it hurts so bad.” As Jackson argues, these victim-impact statements were not relevant to any material issue during the guilt phase of Jackson’s trial and, therefore, were not admissible. Ex parte Crymes, 630 So.2d 125, 126 (Ala.1993). “[T]he introduction of victim impact evidence during the guilt phase of a capital murder trial can result in reversible error if the record indicates that it probably distracted the jury and kept it from performing its duty of determining the guilt or innocence of the defendant based on the admissible evidence and the applicable law.” Ex parte Rieber, 663 So.2d 999, 1006 (Ala.1995). However, “a judgment of conviction can be upheld if the record conclusively shows that the admission of the victim impact evidence during the guilt phase of the trial did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.” 663 So.2d at 1005.

Jackson argues that “the highly emotional testimony of [Loretta], who also expressed her personal belief that Mr. Jackson was the shooter,” created a situation where “the jury could not have been able to objectively evaluate the evidence against [him] after hearing how deeply the incident had impacted the victim’s family.” Jackson’s brief, at 18. “Indeed, [according to Jackson,] it is unlikely that any person sitting in the courtroom would not have been moved by [Loretta’s] deep anguish over the loss of her son. The prejudice was even further heightened because [Loretta] also expressed her opinion that Mr. Jackson was guilty.” Jackson’s reply brief, at 10.

The State, on the other hand, argues that the error in admitting the victim-impact evidence “does not rise to the level of plain error,” because, according to the State, “it is implausible that the limited testimony cited by Jackson had any effect on the jury’s determination of [his] guilt, especially in light of the trial court’s thorough instructions” concerning the jury’s responsibility “to determine, based on all of the evidence, whether ... the prosecutor had established Jackson’s guilt beyond a reasonable doubt.” State’s brief, at 32. However, given the highly emotional nature of Loretta’s testimony, as well as the prosecutor’s “guarantee [to the jury] that [Loretta was] convinced beyond a reasonable doubt” that Jackson committed the murders, we cannot say that “the record conclusively shows that the admission of the victim impact evidence ... did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.” Rieber, 668 So.2d at 1005.

We have not ignored the cases relied upon by the State. However, the facts of this case distinguish it from those cases. In Rieber, the obviously unemotional victim-impact testimony by the victim’s husband during the guilt phase of the trial concerning “[the victim’s] children, their ages, and the status of their custody after the murder” was not infected with any other inadmissible testimony. 663 So.2d at 1005. In Crymes, which was not a death-penalty case, the only issue preserved for review was whether the admission of testimony concerning the ages of the victim’s children was reversible error. The Court concluded that, “[e]ven though the testimony was inadmissible, the trial court’s error in admitting it was harmless in light of the prior testimony, to which Crymes did not object, regarding how long the witness had been married to the victim and how many children they had, and in light of the overwhelming evidence of Crymes’s guilt.” 630 So.2d at 127. Finally, in Hodges v. State, 856 So.2d 875, 920 (Ala.Crim.App.2001), the evidence in question “was not [even] offered as victim-impact evidence.”

For these reasons, we conclude that Loretta’s expression of anguish and the inseparable inadmissible opinion and victim-impact testimony thereby communicated to the jury rise to the level of plain error, because the errors reflected by the admission of that testimony affected Jackson’s substantial rights and likely had an unfair prejudicial impact on the jury’s deliberations. Therefore, the judgment of the Court of Criminal Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, STUART, SMITH, PARKER, MURDOCK, and SHAW, JJ., concur.

BOLIN, J., concurs in the result.

      . This victim’s name is spelled “Denarius” in the Court of Criminal Appeals’ opinion.

      . Although Jackson specifically addressed Rule 701 in his petition and in his brief, the State has made no attempt to explain how Loretta's opinions regarding Jackson’s guilt can be reconciled with the firsthand-knowledge requirement of that rule.

      . Bullet fragments removed from the bodies of Pamela Montgomery and Milton Poole were determined to have been fired from an AK-47 or a SKS (the semiautomatic version of an AK-47) assault rifle. The State argues that "[t]here was evidence that Jackson was in possession of an assault rifle on the day of the shooting.” State’s brief, at 29. However, our review of the record finds no support for this statement. Brandon Carter denied seeing a weapon in Jackson’s vehicle, and, as Jackson points out, "the only evidence that anyone ever possessed an assault rifle was testimony that Mr. Jackson’s cousin, not Mr. Jackson, had said he bought a 'SK' a couple weeks before the incident, not the same day.” Jackson’s reply brief, at 5 (citations to reporter’s transcript omitted).

      . The State does not argue that Loretta’s statements were not improper victim-impact evidence or that the statements were relevant to any disputed issue at the guilt stage of Jackson’s trial.

      . It is not necessary for us to consider Jackson’s other claims of plain error in the guilt and sentencing phases of his trial. Also, as previously indicated, there is no issue before this Court concerning Jackson’s attempted-murder convictions.


text:
    Esaw JACKSON v. STATE of Alabama.
    CR-06-1398.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.
    Charles E. Caldwell, Birmingham; and Alicia A. D’Addario and Randall S. Suss-kind, Montgomery, for appellant.
    Troy King, atty. gen., and Thomas Go-van, Jr., asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

MAIN, Judge.

This Court unanimously affirmed Esaw Jackson’s convictions for three counts of capital murder and for two counts of attempted murder and his resulting sentence of death for the capital-murder convictions and consecutive sentences of life imprisonment for the attempted-murder convictions. See Jackson v. State, 68 So.3d 201 (Ala.Crim.App.2009). Jackson petitioned the Alabama Supreme Court for certiorari review. On September 24, 2010, the Alabama Supreme Court found that the “expression of anguish and the inseparable inadmissible opinion and victim-impact testimony” by the victim’s mother rose to the level of plain error. Ex parte Jackson, 68 So.3d 211, 218 (Ala.2010). Thus, the Supreme Court reversed this Court’s judgment and remanded this case for this Court to remand it to the trial court for a new trial. Therefore, in accordance with the directions of the Alabama Supreme Court, the circuit court’s judgment is reversed, and this case is remanded for a new trial.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ-, concur.


text:
    Shelby Myers HURD v. STATE of Alabama.
    CR-09-0331.
    Court of Criminal Appeals of Alabama.
    May 28, 2010.

      Martin Newell, Florence, for appellant.
    Troy King, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellee.
   MAIN, Judge.

Shelby Myers Hurd pleaded guilty to one count of reckless endangerment, a violation of § 13A-6-24, Ala.Code 1975, and one count of misdemeanor driving under the influence, a violation of § 32-5A-191, Ala.Code 1975, all arising out of an automobile accident in which the passenger in his vehicle, Brandy Tingle, was injured. The trial court sentenced him to 12 months’ imprisonment in each case but split the sentence to time served with supervised probation for 12 months and ordered him to pay $20,000 in restitution. Hurd filed an “Objection to Restitution Order and Motion to Vacate,” which the trial court denied. This appeal followed.

Hurd raises four issues on appeal from the restitution order: (1) Whether the trial court erred by awarding restitution in an amount that was not supported by the evidence and included claimed future expenditures that had not been incurred; (2) whether the trial court erred by not considering the statutory factors in determining the amount and manner of restitution and the method of payment; (3) whether the trial court erred by not rendering its restitution order on the record; and (4) whether the trial court erred by failing to state its findings, the underlying facts and circumstances thereof, and the manner and method of payment in its written restitution order.

In reviewing these claims, we are mindful of the discretion vested in the trial court. “ ‘The particular amount of restitution is a matter which must of necessity be left almost totally to the discretion of the trial judge.’ ” Ex parte Stutts, 897 So.2d 431, 433 (Ala.2004), quoting Clare v. State, 456 So.2d 355, 356 (Ala.Crim.App.1983), aff'd, 456 So.2d 357 (Ala.1984). Absent a clear abuse of discretion, we will not overturn a trial court’s restitution award. Stutts, 897 So.2d at 433. However, for this Court to properly review the trial court’s action for an abuse of discretion, the trial court must have complied with the statutory directives. Section 15-18-68, Ala.Code 1975, lists the following considerations for the sentencing judge in determining the manner, method, or amount of restitution to be ordered:

“(1) The financial resources of the defendant and the victim and the burden that the manner or method of restitution will impose upon the victim or the defendant;
“(2) The ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court;
“(3) The anticipated rehabilitative effect on the defendant regarding the manner of restitution or the method of payment;
“(4) Any burden or hardship upon the victim as a direct or indirect result of the defendant’s criminal acts;
“(5) The mental, physical and financial well being of the victim.”

Rule 26.11(a), Ala.R.Crim.P., provides: “[T]he financial resources and obligations of the defendant and the burden that payment of restitution will impose should be considered in determining how much restitution is to be paid or collected, i.e., whether to be paid by installments and what length of time should be given for payment.” The trial court shall enter a written order of restitution “stating its findings and the underlying facts and circumstances thereof” as required by § 15-18-69, Ala.Code 1975 (emphasis added). That order shall indicate compliance with § 15-18-68, Ala. Code 1975, and Rule 26.11 and shall state the specific amount of restitution imposed and the manner or method of payment. See § 15-18-70, Ala.Code 1975.

The trial court sentenced Hurd on September 3, 2009. In its sentencing order, the trial court indicated that the restitution issue would remain open for 30 days. On the State’s motion filed on October 15, 2009, the trial court conducted a restitution hearing on November 10, 2009. At that hearing, the State presented testimony from Brandy Tingle and Tingle’s grandmother, Brenda Hill.

Tingle testified that she experienced the following injuries as a result of the accident: broken left ankle, numerous broken ribs, fractured back and neck, multiple stitches in her face, a lacerated liver, and loss of all her teeth. Tingle also expressed some confusion as to her injuries and medical bills but indicated that her grandmother could provide information about the matter.

Hill testified that the medical bills that her granddaughter had incurred as a result of injuries suffered in the accident totaled $14,431.85, as listed in “State’s Exhibit A.” The State offered “State’s Exhibit A” into evidence, which was admitted over defense counsel’s objection. Hill testified to two additional medical bills received from CBSI in Tuscaloosa and North Alabama Neurological, in the amounts of $1,019.06 and $218.00, respectively. Hill testified that she had paid between $400 and $600 for prescription medications and other miscellaneous charges for Tingle and that those medications and other charges were to treat injuries sustained in the accident.

On cross-examination, Hill testified that $2,108 and $1,750 were additional expenses incurred by Tingle from abdominal and pelvic CT scans conducted on December 13, 2008. She testified to expenses for CT scans and X-rays in the amounts of $420 and $3,420, respectively, incurred on June 4, 2009. On redirect examination, Tingle testified that the cost to repair her teeth was between $8,000 and $9,000.

Hurd testified that he was employed, earning $15 hourly. He also had suffered injuries from the accident. He had no medical insurance. He testified that the amount of restitution sought by the State would cause him financial hardship. Before the hearing concluded, the State informed the trial court that the hospital where Tingle was taken following the accident had “written off’ Tingle’s bill. The trial court adjourned the proceedings, stating that it would consider the bills and enter an order. On November 12, 2009, the trial court entered an order of restitution stating:'

“This cause came before the court on state’s motion for restitution hearing. The court took testimony and received exhibits.
“Defendant’s sentencing order is hereby AMENDED to include restitution to be paid to Brandy Tingle in the amount of twenty thousand dollars ($20,000.00).”

(R. 48.) Hurd then filed an objection to the restitution order and a motion to vacate, which the trial court denied.

The trial court has not entered a restitution order in compliance with § 15-18-68, Ala.Code 1975; § 15-18-69, Ala. Code 1975; § 15-18-70, Ala.Code 1975; and Rule 26.11, Ala.R.Crim.P. See also Culp v. State, 710 So.2d 1357 (Ala.Crim.App.1996); Moore v. State, 706 So.2d 265 (Ala.Crim.App.1996). Therefore, a remand is necessary for the trial court to supplement its restitution order before we address Hurd’s claims on appeal.

Specifically, on remand, the trial court is directed to make specific findings regarding the following: 1) the underlying facts and circumstances that led the trial court to grant restitution; 2) the reasons supporting the ordered amount of restitution; 3) the manner and method of payment; and 4) the court’s consideration of Hurd’s financial ability to pay restitution. We pretermit discussion of the other issues raised by Hurd’s appeal until the restitution order is modified to comply with the statutory requirements.

On remand, the trial court may conduct additional hearings if it determines that the evidence in the existing record is insufficient for it to amend its previous restitution order. The return to remand should include a transcript of any additional hearing and any exhibits offered in determining the amount of restitution. Pursuant to Rule 10(g), Ala.R.App.P., the record is to be supplemented to include the colloquy that occurred when Hurd pleaded guilty.

The trial court shall take all action directed in sufficient time to permit the circuit clerk to make a proper return to this Court at the earliest possible time within 42 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.

      . Hurd appears to make a jurisdictional argument in his brief to this Court. We note that it is without merit. See Hill v. Bradford, 565 So.2d 208, 210 (Ala.1990) (holding that trial court did not lose jurisdiction to enter restitution award 30 days after sentencing and that restitution order entered by trial court 15 months after sentencing was appropriate); see also State v. Redmon, 885 So.2d 850, 853 (Ala.Crim.App.2004) (“[A] trial court retains jurisdiction to hold a restitution hearing more than 30 days after the date of sentencing.”).

      . We note that "State’s Exhibit A” is not included in the record on appeal.

      . Tingle learned she was pregnant around the time of the accident. The child was born prematurely on August 30, 2008. The accident occurred on February 2, 2008. Tingle continued to have abdominal problems, heart palpitations, and elevated liver enzymes in December 2008 and June 2009.


author: PER CURIAM. MAIN, Judge,

text:
    Charles Anthony KEGLER v. STATE of Alabama.
    CR-09-1442.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.
    Rehearing Denied Feb. 18, 2011.

      Charles Anthony Kegler, pro se.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Charles Anthony Kegler, appeals the circuit court’s summary denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P.

In February 1987, Kegler pleaded guilty to manslaughter and was sentenced to 25 years in prison. Kegler did not appeal his conviction.

In May 2010, over 23 years after he pleaded guilty, Kegler filed his 7th post-conviction petition in the Jefferson Circuit Court. In this petition Kegler alleged that his sentence was illegal because, he argued, the State did not invoke the Habitual Felony Offender Act (“HFOA”) and that at the time of the offense manslaughter was a Class C felony with a range of punishment of not more than 10 years or less than 1 year and 1 day pursuant to § 13A-5-6(a)(3), Ala.Code 1975, and his 25-year sentence therefore exceeded the maximum authorized by law. Without receiving a response from the State, the circuit court denied the petition and made the following entry on the case-action-summary sheet:

“As he has alleged in numerous Rule 32 Petitions, [Kegler] again asserts that the State’s failure to give notice regarding the applicability of the Habitual Felony Offender Act should result in a new sentencing hearing. As [Kegler] is aware from previous rulings on the same issue, the ‘lack of notice of the State’s intent to seek sentence enhancement under the HFOA is not a jurisdictional issue and, therefore, is subject to the two-year limitations.’ Martin v. State, 687 So.2d 1253 (Ala.Crim.App.1996) (now a one year limitation period). Since the procedural bars do apply, this Petition is precluded by Rule 32.2(a)(3) Alabama Rules of Criminal Procedure, because it could have been raised at trial but was not. The claim is also precluded by Rule 32.2(a)(5), Alabama Rules of Criminal Procedure, because the claim could have been raised on appeal but was not. This is also precluded by Rule 32.2(b), Alabama Rules of Criminal Procedure, because Kegler raised the same grounds in at least three Rule 82 Petitions. Finally, since this is not a jurisdictional issue and more than one year has passed since the time for filing an appeal, the claim is precluded by Rule 32.2(c), Alabama Rules of Criminal Procedure.”

(C. 6.) Kegler filed a motion for reconsideration. The circuit court denied that motion; this appeal followed.

Kegler argues on appeal that the circuit court erroneously mischaracterized his claim as a challenge to the State’s failure to provide notice of its intent to proceed under the HFOA, not that the State failed to invoke the HFOA; therefore, he argues, the circuit court erred in summarily denying him relief.

When reviewing a “circuit court’s rulings made in a postconviction petition, we may affirm a ruling if it is correct for any reason.” Bush v. State, [Ms. CR-03-1902, May 29, 2009] -So.3d -, - (Ala.Crim.App.2009).

This Court has taken judicial notice of our records related to Kegler’s appeals from the denial of his previous postconviction petitions attacking his manslaughter conviction. See Nettles v. State, 731 So.2d 626 (Ala.Crim.App.1998). Our records indicate that this is an appeal from the denial of Kegler’s seventh postconviction petition. We affirmed the denial of Kegler’s first postconviction petition in 1990, Kegler v. State, 572 So.2d 889 (Ala.Crim.App.1990) (table); of his second postconviction petition in, 1993, Kegler v. State, 639 So.2d 589 (Ala.Crim.App.1993) (table); of his third postconviction petition in 1996, Kegler v. State, 698 So.2d 805 (Ala.Crim.App.1996) (table); of his fourth postconviction petition in 2004, Kegler v. State, 910 So.2d 839 (Ala.Crim.App.2004) (table); of his fifth postconviction petition in 2005, Kegler v. State, 954 So.2d 1147 (Ala.Crim.App.2005) (table); and of his sixth postconviction petition in 2009, Kegler v. State, 46 So.3d 979 (table).

We stated the following in our unpublished memorandum denying Kegler’s sixth postconviction petition:

“The State’s alleged failure to invoke and apply the HFOA at sentencing was a jurisdictional issue. See Horn v. State, 912 So.2d 539 (Ala.Crim.App.2004)(the trial court lacks jurisdiction to impose an enhanced sentence if the State fails to invoke the HFOA prior to sentencing). However, even if an issue is jurisdictional, the defendant is not entitled to successive postconviction review of that issue if it was raised and rejected in a previous petition. Ex parte Trawick, 972 So.2d 782 (Ala.2007). In his fifth postconviction petition, Ke-gler asserted that ‘the circuit court imposed a sentence in excess of the maximum provided for a Class C felony.’ In an unpublished memorandum issued on February 20, 2004, this court affirmed the trial court’s denial of that petition and stated, in pertinent part:
“ ‘[I]n reviewing Kegler’s prior cases before this court, we note that Ke-gler’s fifth petition for post-conviction relief fails to mention two prior felony convictions: a 1981 conviction for second-degree theft and a 1985 conviction for second-degree receiving stolen property. Because application of the Habitual Felony Offender Act is mandatory, see Cunny v. State, 629 So.2d 693 (Ala.Crim.App.1993), the circuit court was required to sentence Kegler in accordance with the provisions of § 13A-5-9, Ala.Code 1975, even if the court ordered the manslaughter sentence to run concurrently with one or more of Kegler’s previous sentences.’
“Kegler’s claims were precluded because they were nonjurisdictional and untimely or successive and previously rejected.”

The claim Kegler presents in his seventh postconviction petition has already been addressed and rejected on the merits. The Alabama Supreme Court in Ex parte Trawick, 972 So.2d 782 (Ala.2007), held that a jurisdictional claim that has been addressed on the merits in previous proceedings is procedurally barred in a subsequent postconviction proceeding. The Court stated:

“Rule 82.2(b), Ala. R.Crim. P., generally precludes a trial court from granting relief in response to a successive Rule 82 petition. Rule 32.2(b) defines a ‘successive petition’ as follows: ‘If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of the same trial or guilty-plea proceeding shall be treated as successive petitions under this rule.’ Rule 32.2(b) creates a two-pronged approach to addressing successive petitions. The first inquiry, under Rule 32.2(b), is whether the grounds raised in the successive petition are du-plicative, that is, have the same grounds been raised in a prior petition. Under Rule 32.2(b), ‘[t]he Court shall not grant relief on a successive petition on the same or similar grounds on behalf of the petitioner.’
“The second prong of Rule 32.2(b) states that ‘[a] successive petition on different grounds shall be denied’ unless one of two exceptions apply. (Emphasis added.) The exception that Trawick attempts to invoke in this case allows the trial court to consider a successive petition when ‘the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence.’ Rule 32.2(b), Ala. R.Crim. P. Trawick’s claim that his sentence is illegal under the HFOA presents a jurisdictional claim. See, e.g., Ex parte Robey, 920 So.2d 1069, 1071-72 (Ala.2004) (holding that because multiple punishments for the same offense constitute a sentence that exceeds the maximum allowed by law and an illegal sentence affects the trial court’s jurisdiction, ‘Robey is not barred from asserting in this successive Rule 32 petition the violation of his double-jeopardy rights’); Ex parte Sanders, 792 So.2d 1087, 1091 (Ala.2001) (‘ “[wjhether a sentence is excessive ... is a jurisdictional issue” that is not precluded by the limitations period of Rule 32, by the rule against successive petitions, or by Rule 32.2(a)(3)’). However, Trawick’s fourth Rule 32 petition asserts a ground Traw-ick has previously asserted, even if it is a jurisdictional issue. Therefore, the second prong of Rule 32.2(b), which is limited to successive petitions on different grounds, does not apply.
“The first prong of Rule 32.2(b) precludes Trawick from reasserting a jurisdictional claim ‘on the same or similar grounds.’ Because Trawick’s jurisdictional claim is duplicative, the issue having already been raised and adjudicated on its merits by the trial court in his third petition, we do not reach the second prong of Rule 32 containing the jurisdictional exception. Compare Grady v. State, 831 So.2d 646, 648-49 (Ala.Crim.App.2001) (‘[Ajlthough this is a successive petition ... jurisdictional claims are not “precluded by the limitations period or by the rule against successive petitions.” ... Moreover, from the record before us, Grady did not claim that his sentence Was illegal in his first Rule 32 petition.’ (emphasis added)). Although our cases have previously stated that jurisdictional claims cannot be precluded as ‘successive,’ that exception to Rule 82.2(b) applies only to jurisdictional claims not previously raised and adjudicated on the merits.”

972 So.2d at 783-84. Because Kegler’s claim has already been addressed and rejected on the merits according to Trawick, this jurisdictional claim asserted in Ke-gler’s seventh postconviction petition is barred as successive.

Kegler has attacked his 1987 sentence in at least three of his prior postconviction proceedings. After having failed in his repeated attempts to obtain relief based on claims that he did not receive notice that his sentence would be enhanced by application of the HFOA and that the State did not properly prove his prior convictions, Kegler has changed his approach. It is clear that this change is an attempt to circumvent the procedural bars of Rule 32 so that he may relitigate a claim that has repeatedly been decided against him by this Court and by the circuit court.

The circuit court correctly denied Ke-gler’s seventh Rule 32 petition. For the reasons stated above, we affirm the circuit court’s ruling.

AFFIRMED.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur; MAIN, J., dissents, with opinion.

MAIN, Judge,

dissenting.

I respectfully dissent from the per cu-riam opinion affirming the circuit court’s summary dismissal of Kegler’s petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P.

At the onset, I note, as did the majority, that Kegler has filed a number of postcon-viction petitions challenging his conviction and sentence and that in several of those petitions he either alleged that he did not receive notice of the State’s intent to apply the Habitual Felony Offender Act (“the HFOA”) or that the State did not prove his prior convictions. All of those prior allegations were nonjurisdictional. See Wallace v. State, 959 So.2d 1161, 1164 (Ala.Crim.App.2006) (“A challenge to insufficient notice of the State’s intent to seek application of the HFOA is subject to the procedural bars in Rule 32.2, Ala. R.Crim. P.”); and Ex parte Batey, 958 So.2d 339, 341 (Ala.2006) (“[T]he failure to prove a prior conviction is not a jurisdictional matter; therefore, consideration of that issue in a Rule 32 petition is precluded.”).

In the present petition, however, Kegler has alleged that the HFOA was neither invoked nor applied. In other words, he argues that he was not sentenced under the HFOA, but rather, was sentenced to 25 years’ imprisonment for an offense that, at the time, allowed only for a range of punishment of not more than 10 years or less than 1 year and 1 day. Thus, he asserts, his sentence is illegal. An illegal sentence is not subject to the procedural bars of Rule 32. See Kelley v. State, 985 So.2d 972 (Ala.Crim.App.2007). Thus, for this Court to apply the successive bar to Kegler’s present claim, two factors must be in place: (1) Kegler must have raised the same or a similar claim in a prior petition; and (2) that claim must have been adjudicated on the merits in the previous proceedings. See Ex parte Trawick, 972 So.2d 782 (Ala.2007).

I believe that the majority has erred in relying on language in this Court’s memorandum affirmances in two of Kegler’s previous petitions (CR-03-0261 and CR-07-1655). I agree with the majority in the present appeal and with the language quoted from some of Kegler’s earlier appeals that it appears that Kegler has two prior felony convictions that would qualify for enhancement purposes. However, nothing in the language relied upon by the majority in this ease suggests that the State or trial court had invoked the HFOA or that the trial court had applied the HFOA at sentencing. Application of the HFOA is mandatory, but the HFOA must first be invoked by either the State or the trial court. See Cunny v. State, 629 So.2d 693 (Ala.Crim.App.1993). See also Ex parte Williams, 510 So.2d 135 (Ala.1987) (the HFOA is not self-executing but instead must first be invoked before a defendant may be sentenced pursuant to the HFOA). Thus, I cannot say that the question whether the HFOA had been invoked had previously been adjudicated on the merits in the denial of any of Kegler’s previous petitions.

For these reasons, I do not believe that this Court’s previous memorandum affir-mances provide the basis for denying the present petition. Rather, I would remand this case to the circuit court for that court to allow the State an opportunity to respond to the petition, and for the circuit court then to proceed as provided in Rule 32.9, Ala.R.Crim.P. Therefore, I respectfully dissent.

      . Kegler had two years from March 1987 to file a timely Rule 32 petition. See Court Comment, Rule 32.2, Ala. R.Crim. P.

      . The first postconviction petition was filed when the temporary Alabama Rules of Criminal Procedure were in effect and was therefore filed under Rule 20, Ala. R.Crim. P. Temp.

      . I suggest that a stronger basis for affirming the present petition is found in the very language of many of Kegler’s previous petitions in which he characterized his sentence as having been imposed pursuant to the HFOA. I do not believe that to be a basis for affir-manee, however, because Kegler avers in the present petition that his previous characterization was based on his mistaken belief and assumption that the HFOA had been invoked and applied.


author: PER CURIAM.

text:
    In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420.
    No. SC10-2242.
    Supreme Court of Florida.
    July 7, 2011.
    Katherine Eastmoore Giddings, Chair, Judicial Administration Committee, Aker-man Senterfitt, Tallahassee, FL, and Senior Judge Judith Kreeger, Chair, Subcommittee on Access to Court Records, Eleventh Judicial Circuit, Miami, FL, as Petitioner.
    Nancy Daniels, Public Defender, Second Judicial Circuit, Tallahassee, FL, on behalf of Florida Public Defender Association, Inc.; and Judge Steven Leifman, Cham, Task Force on Substance Abuse and Mental Health Issues in the Court, Eleventh Judicial Circuit, Miami, FL, Responding with comments.
   PER CURIAM.

We have for consideration amendments to Rule of Judicial Administration 2.420" (Public Access to Judicial Branch Records). We have jurisdiction and amend the rule as suggested by the Florida Courts Technology Commission’s Subcommittee on Access to Court Records (Access Subcommittee) to include presentence investigation reports and attached psychological and psychiatric evaluations as an additional category of records that the clerk must automatically maintain as confidential pursuant to rule 2.420(d)(1)(B) of the Rules of Judicial Administration. A party seeking to maintain as confidential psychological or mental health evaluations not included in rule 2.420(d)(1)(B) must utilize the procedures set forth in rule 2.420(d)(3).

This case involves amendments to recently adopted Florida Rule of Judicial Administration 2.420(d) (Procedures for Determining Confidentiality of Court Records) and the companion form (Notice of Confidential Information within Court Filing). See In re Amendments to Fla. Rule of Jud. Admin. 2.420 & Fla. Rules of App. Pro., 31 So.3d 756 (Fla.2010) (adopting procedures that allow the clerk of court to readily identify and screen from the public confidential information filed with the court and that refine the procedures for sealing and unsealing court records). The amendments are an offshoot of In re Implementation of Committee on Privacy & Court Records Recommendations, — So.3d -, 2011 WL 2566360 (Fla.2011) (involving rule amendments to minimize the amount of unnecessary personal information filed with the court) (“minimization case”). The amendments add presentence investigation reports (PSIs) and any psychological or psychiatric evaluations attached to PSIs to the list of information in court records that the clerk must automatically maintain as confidential under rule 2.420(d)(1)(B).

The amendments to rule 2.420(d)(1)(B) were originally suggested by the Access Subcommittee in its response to a comment filed in the minimization case by the Criminal Procedure Rules Committee (CPR Committee). See In re Implementation of Committee on Privacy & Court Records Recommendations, No. SC08-2443 (Fla. response filed Nov. 1, 2010); In re Implementation of Committee on Privacy & Court Records Recommendations, No. SC08-2443 (Fla. comment filed May 12, 2010). A minority Access Subcommittee report filed in the minimization case urged that all pretrial mental health evaluations should be included in the rule 2.420(d)(1)(B) list. See In re Implementation of Committee on Privacy & Court Records Recommendations, No. SC08-2443 (Fla. minority report filed Nov. 1, 2010). Because rule 2.420 was not at issue in the minimization case, this case was created to consider the Access Subcommittee’s suggested amendments to that rule and the amendments were published for comment.

Comments in support of the suggested amendments were filed by the Task Force on Substance Abuse and Mental Health Issues in the Court (Task Force) and the Florida Public Defender Association (FPDA). The Task Force also urges us to further amend the rule to include pretrial and post-trial psychological and psychiatric evaluations and reports. The FPDA adopts the views expressed in the minority Access Subcommittee report and by the Task Force. The Access Subcommittee filed a response to the comments, taking the position that mental health evaluations and reports filed in criminal cases (other than those contained in PSIs) are not appropriate for inclusion in the list of information the clerk must automatically treat as confidential under rule 2.420(d)(1)(B). It explains that the Legislature would have to expressly make mental health evaluations filed with the court exempt from public access before those evaluations can properly be added to that list.

Rule 2.420(d)(1)(B) lists the nineteen categories of information in court records that the clerk of court must automatically designate and maintain as confidential. In our opinion adopting the new rule, we explained that the rule contains a narrow list of public records exemptions that are appropriate in the court context and are readily identifiable by the clerk of court. See 31 So.3d at 765. In that opinion, we also made clear that other types of information filed with the court that may be confidential but are not included in the subdivision (d)(1)(B) list must be the subject of a case by case judicial determination of confidentiality before the information can be treated as confidential. Id.; see also Fla. R. Jud. Admin. 2.420(d)(3) (requiring person filing document with court that contains information that may be confidential but is not listed in subdivision (d)(1) to file motion for determination of confidentiality of court records). The proponents of adding all mental health evaluations and reports filed in a criminal case to the subdivision (d)(1)(B) list acknowledge that the statutes relied upon for their inclusion do not clearly express that those evaluations and reports are confidential in the context of public access to court records. Therefore, we defer to the Access Subcommittee on the issue and add only PSIs and any psychological or psychiatric evaluations attached to PSIs to subdivision (d)(1)(B). We also add the new category to the notice of confidential information within court filing form included in the rule.

However, we decline to suspend application of rule 2.420(d) in criminal cases until the Legislature can address the issue of confidentiality of mental health evaluations and reports, as suggested by the Task Force. We also decline to authorize clerks of court to continue to seal mental health evaluations filed in criminal cases, pending a judicial determination, on the authority of administrative orders issued in the various circuits, as also urged here. Rule 2.420 provides the procedures for sealing court records. And, as the Access Subcommittee points out, permitting local introduction of blanket exemptions to the rule would undermine the uniform procedures adopted by the Court and could result in litigation.

Accordingly, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 2.420. PUBLIC ACCESS TO JUDICIAL BRANCH RECORDS

(a)-(c) [No change]

(d) Procedures for Determining Confidentiality of Court Records.

(1) The clerk of the court shall designate and maintain the confidentiality of any information contained within a court record that is described in subdivision (d)(1)(A) or (d)(1)(B) of this rule. The following information shall be maintained as confidential:

(A) information described by any of subdivisions (c)(1) through (c)(6) of this rule; and

(B) except as provided by court order, information subject to subdivision (c)(7) or (c)(8) of this rule that is currently confidential or exempt from section 119.07, Florida Statutes, and article I, section 24(a) of the Florida Constitution under any of the following statutes or court rules as they may be amended or renumbered:

(i)-(xix) [No change]

(xx) Presentence investigation reports and attached psychological or psychiatric evaluations. Fla. R.Crim. P. 3.712; §§ 921.231(1)0), 948.015(9), Fla. Stat.

(2)-(4) [No change]

(e)-(i) [No change]

Committee Notes

[No change]

2002 Court Commentary

[No change]

2005 Court Commentary

[No change]

2007 Court Commentary

[No change]

2007 Court Commentary

[No change]

IN THE _ COURT, _ JUDICIAL CIRCUIT, IN AND FOR_COUNTY, FLORIDA

CASE NO.: _

Plaintiff/Petitioner, v. Defendant/Respondent. /

NOTICE OF CONFIDENTIAL INFORMATION WITHIN COURT FILING

Pursuant to Florida Rule of Judicial Administration 2.420(d)(2), the filer of a court record at the time of filing shall indicate whether any confidential information is included within the document being filed; identify the confidentiality provision that applies to the identified information; and identify the precise location of the confidential information within the document being filed.

Title/Type of Documents):_

Indicate the applicable confidentiality provision(s) below from Rule 2.420(d)(1)(B), by specifying the location within the document on the space provided:

_ Chapter 39 records relating to dependency matters, termination of parental rights, guardians ad litem, child abuse, neglect, and abandonment. § 39.0132(3), Fla. Stat. (If the document is filed within a Chapter 39 case, this form is not required.)

_ Adoption records. § 63.162, Fla. Stat. (If the document is filed within a Chapter 63 adoption case, this form is not required.)

_ Social Security, bank account, charge, debit, and credit card numbers in court records. § 119.0714(l)(i)-(j), (2)(a)-(e), Fla. Stat. (Unless redaction is requested pursuant to § 119.0714(2), this information is exempt only as of January 1, 2011.)

_ HIV test results and patient identity within the HIV test results. § 381.004(3)(e), Fla. Stat.

_ Sexually transmitted diseases— test results and identity within the test results when provided by the Department of Health or the department’s authorized representative. § 384.29, Fla. Stat.

_ Birth and death certificates, including court-issued delayed birth certificates and fetal death certificates. §§ 382.008(6), 382.025(l)(a), Fla. Stat.

_ Identifying information in petition by minor for waiver of parental notice when seeking to terminate pregnancy. § 390.01116, Fla. Stat. (If the document is filed within a Ch. 390 waiver of parental notice case, this form is not required.)

_ Identifying information in clinical mental health records under the Baker Act. § 394.4615(7), Fla. Stat.

_ Records of substance abuse service providers which pertain to the identity, diagnosis, and prognosis of and service provision to individuals who have received services from substance abuse service providers. § 397.501(7), Fla. Stat.

_ Identifying information in clinical records of detained criminal defendants found incompetent to proceed or acquitted by reason of insanity. § 916.107(8), Fla. Stat.

_ Estate inventories and account-ings. § 733.604(1), Fla. Stat.

_ Victim’s address in domestic violence action on petitioner’s request. § 741.30(3)(b), Fla. Stat.

_ Information identifying victims of sexual offenses, including child sexual abuse. §§ 119.071(2)(h), 119.0714(l)(h), Fla. Stat.

_ Gestational surrogacy records. § 742.16(9), Fla. Stat.

_ Guardianship reports and orders appointing court monitors in guardianship cases. §§ 744.1076, 744.3701, Fla. Stat.

_ Grand jury records. Ch. 905, Fla. Stat. (If the document is filed in a Ch. 905 grand jury proceeding, this form is not required.)

_ Information acquired by courts and law enforcement regarding family services for children. § 984.06(3)-(4), Fla. Stat. (If the document is filed in a Ch. 984 family services for children case, this form is not required.)

_ Juvenile delinquency records. §§ 985.04(1), 985.045(2), Fla. Stat. (If the document is filed in a Ch. 985 juvenile delinquency case, this form is not required.)

_ Information disclosing the identity of persons subject to tuberculosis proceedings and records of the Department of Health in suspected tuberculosis cases. §§ 392.545, 392.65, Fla. Stat.

Presentence investigation reports and attached psychological or psychiatric evaluations. Fla. R.Crim. P. 3.712; §§ 921.231(l)(i), 948.015(9), Fla. Stat.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was furnished by U.S. mail/personal service to: _ on_, 20_

Attorney Name.

Address.

Phone .

Florida Bar No.

Note: The clerk of court shall review filings identified as containing confidential information to determine whether the information is facially subject to confidentiality under the identified provision. The clerk shall notify the filer in writing within 5 days if the clerk determines that the information is NOT subject to confidentiality, and the records shall not be held as confidential for more than 10 days, unless a motion is filed pursuant to subdivision (d)(3) of the Rule. Fla. R. Jud. Admin. 2.420(d)(2).

      . See art. V, § 2(a), Fla. Const.

      . See In re Implementation of Comm. on Privacy & Court Records Recommendations, No. SC08-2443 (Fla. order filed Nov. 19, 2010) (stating that suggested amendments to rule 2.420(d)(1)(B) will be considered in case no. SC 10-2242).

      . Article I, section 24, Florida Constitution, "Access to public records and meetings,” which was adopted in November 1992 and became effective July 1, 1993, provides in pertinent part:
      (a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.

      (c) This section shall be self-executing. The legislature, however, may provide by general law passed by a two-thirds vote of each house for the exemption of records from the requirements of subsection (a) ... provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law. ...

      (d) All laws that are in effect on July 1, 1993 that limit public access to records or meetings shall remain in force, and such laws apply to records of the legislative and judicial branches, until they are repealed. Rules of court that are in effect on the date of adoption of this section that limit access to records shall remain in effect until they are repealed.

      Art. I, § 24, Fla. Const, (emphasis added).

      . See §§ 456.057, 456.059, or 90.503, Fla. Stat. (2010).

      . Rule of Criminal Procedure 3.712, which provides that "the presentence investigation shall not be a public record,” was adopted before the 1992 adoption of the article I, section 24(d) grandfathering provision for rules of court limiting access to records. See In re Fla. Rules of Crim. Pro., 272 So.2d 65, 122 (Fla.1972).

        .See §§ 921.231(1)6) (requiring that, as appropriate, PSIs contain the psychological or psychiatric evaluation of offender who will be sentenced to prison); 948.015(9) (requiring that, as appropriate, PSIs contain the psychological or psychiatric evaluation of offender who will receive a nonstate prison sanction), Fla. Stat. (2010).


author: SILBERMAN, Judge.

text:
    Queen Elizabeth COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3691.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

SILBERMAN, Judge.

In Collins v. State, 26 So.3d 1287 (Fla.2009), the Supreme Court of Florida quashed this court’s decision in Collins v. State, 12 So.3d 227 (Fla. 2d DCA 2009), and directed this court on remand to reconsider the matter in light of the supreme court’s decision in Sheppard v. State, 17 So.3d 275 (Fla.2009). This court had relied upon its opinion in Sheppard v. State, 988 So.2d 74 (Fla. 2d DCA 2008), quashed, 17 So.3d 275 (Fla.2009), when it affirmed Collins’ judgment and sentence and the denial of her pro se motion to withdraw plea which was made pursuant to Florida Rule of Criminal Procedure 3.170(£).

In her pro se motion Collins argued that she had not been properly represented. Collins also asserted that counsel had told her she could change her mind up until the very last minute and that she was exercising her right to do so. The court denied the motion without exploring Collins’ claims that she had been misrepresented. However, pursuant to the supreme court’s opinion in Sheppard, the court should not have denied Collins’ motion in this manner. See Sheppard, 17 So.3d at 286. In this situation, the supreme court explained that the trial court should proceed as follows:

[T]he trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

Id. at 287 (footnote omitted).

Therefore, we affirm the judgment and sentence, but we reverse the denial of the motion to withdraw plea and remand for the trial court to follow the procedures in the supreme court’s Sheppard opinion.

Affirmed in part, reversed in part, and remanded.

DAVIS, J., and FULMER, CAROLYN K, Senior Judge, Concur.