author: KELLUM, Judge.

text:
    Reginald Tyrone LIGHTFOOT v. STATE of Alabama.
    CR-11-0376.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 2012.

      John Robert Allen, Huntsville; and Randall O. Gladden, Huntsville, for appellant.
    Luther Strange, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
   On Application for Rehearing

KELLUM, Judge.

The unpublished memorandum issued on June 15, 2012, is withdrawn and the following opinion is substituted therefor.

Reginald Tyrone Lightfoot was convicted of trafficking in cocaine, a violation of § 13A-12-231(2), Ala.Code 1975, and of unlawful possession of marijuana in the second degree, a violation of § 13A-12-214, Ala.Code 1975. For the trafficking conviction, he was sentenced to 15 years’ imprisonment and was ordered to pay a $100 fee to the Alabama Forensic Services Trust Fund, see § 36-18-7(a), Ala.Code 1975, a $1000 penalty under the Demand Reduction Assessment Act, see § 13A-12-281, Ala.Code 1975, and fines totaling $75,000 pursuant to §§ 13A-12-231(2)a. and 13A-12-23K13), Ala.Code 1975. For the possession conviction, he was sentenced to one year’s imprisonment and was ordered to pay a $500 fine.

The evidence adduced at trial indicated the following. On January 18, 2009, at approximately 4:00 a.m., Blake Dean, a patrol officer with the Huntsville Police Department, executed a traffic stop of a vehicle that had “swerved a few times across the line and had no tag light.” (R. 123.) The vehicle was being driven by Lightfoot; Brandy Newberry was a passenger in the vehicle. When Officer Dean approached the vehicle, he smelled the odor of marijuana emanating from inside the vehicle. When asked about the odor, Lightfoot said that he had been in a nightclub. Lightfoot also told Officer Dean that he had a pistol in the vehicle and that he had a permit for the pistol. Officer Dean then had Lightfoot and Newberry get out of the vehicle, and he searched the vehicle, finding what was later determined to be 42.4 grams of cocaine and 21.3 grams of marijuana in a purse on the passenger-side floorboard, and finding a pistol in the center console. Officer Dean first questioned Newberry about the narcotics. Based on her responses, he then, after advising Lightfoot of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), questioned Lightfoot about the narcotics. Lightfoot told Officer Dean that when he first saw Officer Dean’s emergency lights, he got the cocaine and marijuana out of the center console of the vehicle and gave them to Newberry, who put them in her purse.

After both sides rested and the trial court instructed the jury on the applicable principles of law, the jury convicted Light-foot of trafficking in cocaine and of unlawful possession of marijuana in the second degree as charged in the indictment. This appeal followed.

I.

Lightfoot contends that the trial court erred in denying his motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He argues that the State exercised its peremptory strikes in a racially discriminatory manner and that the trial court erred in finding that he had failed to establish a prima facie case of discrimination and not requiring the State to provide its reasons for the strikes. We disagree.

The record reflects that there were 30 prospective jurors on the venire. Of those 30, 21 were Caucasian, 8 were African-American, and 1 was listed on the venire list as “A,” signifying Asian. The State was afforded nine peremptory strikes and the defense eight peremptory strikes; the State’s ninth strike was the alternate juror. The State struck five African-Americans and four Caucasians; the defense struck seven Caucasians and the sole Asian. The jury consisted of nine Caucasians and three African-Americans. After the jury was struck, but before it was sworn, the following occurred:

“THE COURT: Do we have any motions?
“[Defense counsel]: Yes, sir. At this time I would make the motion to dismiss this panel, based on a Batson motion. The State has used five of its nine strikes — the majority of its nine strikes — to strike black members of the Jury from the panel. And as I recall the voir dire questioning, I don’t remember but one with a possible — that they would have a possible reason for doing so other than the color of their skin, Your Honor.
“THE COURT: I think that courts have found that numbers alone are not sufficient to shift the burden to the State to offer a reason for a peremptory challenge. Do you have any other basis for your motion?
“[Defense counsel]: Your Honor, the voir dire questions, as they were asked and answered — they were answered except, again, as I remember, one of the strikes in particular — they were all answered on a pretty equal, or equivalent, basis, by both blacks and whites. And it appears as though the choice has been made, based on the way the State has struck the black members of the Jury, based on the color of their skin rather than the questioning and the answers received in questioning on voir dire.
“THE COURT: Who is the one strike in particular you are referencing?
“[Defense counsel]: I would be referring right now to No. 26—
“THE COURT: And what is your particular—
“[Defense counsel]: — who had a similar charge against her.
“THE COURT: That would appear, in my opinion, to be a race-neutral reason.
“[Defense counsel]: That is what I’m saying.
“THE COURT: With the exception of her, you mean?
“[Defense counsel]: With the exception.
“THE COURT: I do not find that the Defense has made a prima facie case that would justify shifting the burden to the State to offer peremptory challenges [sic], based on Batson.”

(R. 102-04.)

“When reviewing a trial court’s ruling on a Batson motion, this court gives deference to the trial court and will reverse a trial court’s decision only if the ruling is clearly erroneous.” Yancey v. State, 813 So.2d 1, 3 (Ala.Crim.App.2001). “ ‘ “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” ’ ” Fletcher v. State, 703 So.2d 432, 436 (Ala.Crim.App.1997) (quoting Davis v. State, 555 So.2d 309, 312 (Ala.Crim.App.1989), quoting in turn Powell v. State, 548 So.2d 590, 594 (Ala.Crim.App.1988), aff'd, 548 So.2d 605 (Ala.1989)).

In evaluating a Batson claim, a three-step process must be followed:

“First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. [Batson,] 476 U.S., at 96-97. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Id., at 97-98. Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Id., at 98.”

Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

In the first step of the process, the step at issue here, “[t]he party alleging discriminatory use of a peremptory strike bears the burden of establishing a prima facie case of discrimination.” Ex parte Brooks, 695 So.2d 184, 190 (Ala.1997). “In addition to showing that the State used peremptory challenges to remove members of a cognizable group ... and relying upon the fact that peremptory strikes permit discrimination, a claimant also must show that these facts and any other relevant facts raise an inference that the prosecutor used his strikes in a discriminatory manner.” Madison v. State, 718 So.2d 90, 101 (Ala.Crim.App.1997). “The facts and circumstances necessary to establish a pri-ma facie case of purposeful discrimination in the jury selection process will, of course, vary from case to case, depending on the particular facts and circumstances involved.” Kidd v. State, 649 So.2d 1304, 1311 (Ala.Crim.App.1994). While it is true the striking of one person for a racial reason is a violation of the principles of Batson and grounds for reversal, see Williams v. State, 548 So.2d 501, 507 (Ala.Crim.App.1988), it is equally true that “[m]erely showing that the challenged party struck one or more members of a particular race is not sufficient to establish a prima facie case.” Edwards v. State, 628 So.2d 1021, 1024 (Ala.Crim.App.1993).

In Ex parte Branch, 526 So.2d 609 (Ala.1987), the Alabama Supreme Court provided a nonexclusive list of relevant circumstances to consider in determining whether a prima facie case of discrimination has been established:

“The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:
“1. Evidence that the ‘jurors in question share[d] only this one characteristic — their membership in the group— and that in all other respects they [were] as heterogeneous as the community as a whole.’ [People v.] Wheeler, 22 Cal.3d [258,] 280, 588 P.2d [748,] 764, 148 Cal.Rptr. [890,] 905 [ (1978) ]. For instance ‘it may be significant that the^ persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions,’ Wheeler, 22 Cal.3d at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905, n. 27, indicating that race was the deciding factor.
“2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors. Batson, 476 U.S. at 97,106 S.Ct. at 1723.
“3. The past conduct of the state’s attorney in using peremptory challenges to strike all blacks from the jury venire. Swain[ v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) ].
“4. The type and manner of the state’s attorney’s questions and statements during voir dire, including nothing more than desultory voir dire. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Wheeler, 22 Cal.3d at 281, 583 P.2d at 764,148 Cal.Rptr. at 905.
“5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions. Slappy v. State, 503 So.2d 350, 355, (Fla.Dist.Ct.App.1987); People v. Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr. 656 (1986); People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 764, 148 Cal.Rptr. 890 (1978).
“6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., in Slappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged. Slappy, 503 So.2d at 352 and 355.
“7. Disparate examination of members of the venire; e.g., in Slappy, a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors. Slappy, 503 So.2d at 355.
“8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury. Batson, 476 U.S. at 93, 106 S.Ct. at 1721; Washington v. Davis, 426 U.S. [229] at 242, 96 S.Ct. [2040] at 2049 [(1976)].
“9. The state used peremptory challenges to dismiss all or most black jurors. See Slappy, 503 So.2d at 354, Turner, supra.”

526 So.2d at 622-23.

Lightfoot argues on appeal, as he did in the trial court, that the State used five of its nine peremptory strikes against African-American prospective jurors, that there was no apparent basis for four of those strikes, and that the African-Americans who were struck answered questions the same or similarly as did Caucasians who were not struck, thus establishing disparate treatment. This evidence, Light-foot concludes, establishes a prima facie case of racial discrimination. We note that Lightfoot does not argue on appeal, nor did he argue to the trial court, that the struck jurors shared only the characteristic of race, that there was a lack of meaningful voir dire directed at African-American prospective jurors, or that the prosecutor had a history of using peremptory challenges in a manner that discriminated against African-Americans.

It is undisputed that the State used five of its nine peremptory strikes against African-Americans. It is equally undisputed that defense counsel believed there was no “possible reason” for four of those strikes. (R. 102.) “However, statistics and opinion alone do not prove a prima facie case of discrimination.” Woods v. State, 845 So.2d 843, 845 (Ala.Crim.App.2002). The only other circumstance cited by Lightfoot as establishing a prima face case of discrimination is alleged disparate treatment of African-Americans and Caucasians. He makes several arguments regarding what he believes constitutes disparate treatment; we address each in turn.

Lightfoot alleges that the State struck two African-Americans, specifically Jurors No. 20 and No. 25, who provided during roll call of the venire their biographical information, i.e., their name, their spouse’s name, their occupation, and their spouse’s occupation but who answered no questions during voir dire, while the State did not strike three Caucasian jurors who provided their biographical information during roll call, but also did not answer any questions during voir dire. This is largely true. Jurors No. 2, No. 22, No. 23, and No. 24, all Caucasians who were not struck and who sat on Lightfoot’s jury, provided their biographical information during roll call but did not answer any questions during voir dire. However, Juror No. 7, a Caucasian who was struck by the State, also provided her biographical information during roll call but did not answer any questions during voir dire. Both African-American and Caucasian prospective jurors who had not answered any questions during voir dire were struck by the State. Therefore, we cannot say there was disparate treatment in this regard.

Lightfoot also argues that the State struck Juror No. 14, an African-American who indicated that her cousin had been arrested for a drug-related crime, and Juror No. 28, an African-American pastor who indicated that he had worked with many people who had been arrested for drug-related crimes, but did not strike Jurors No. 3 and No. 12, Caucasians who also indicated that they had family members (a nephew and a niece, respectively) who had been arrested for drug-related crimes, or Juror No. 11, a Caucasian who indicated that his son had had a drug problem and that he had adopted children whose biological parents were drug addicts. Again, this is true. However, the State also did not strike Juror No. 9, an African-American who indicated that his brother had been arrested for a drug-related crime, Juror No. 17, an African-American who indicated that her daughter had had a drug problem, or Juror No. 30, an African-American who indicated that both her sister and her nephew had had drug problems. And the State did strike Juror No. 27, a Caucasian who indicated that her nephew had had a drug problem and was in prison. Therefore, again, we cannot say that there was disparate treatment in this regard.

Under the circumstances in this case, we conclude that Lightfoot failed to establish a prima facie case of racial discrimination. Therefore, the trial court properly denied Lightfoot’s Batson motion.

II.

Lightfoot also contends that the trial court erred in applying the firearm enhancement in § 13A-12-231(13), Ala.Code 1975, to his sentence for the trafficking conviction. He argues that application of the enhancement ran afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny because, he says: (1) the enhancement was not charged in the indictment; (2) he did not receive notice, a reasonable time before trial, of the State’s intent to seek application of the enhancement; and (3) his possession of a firearm was not proven to, or found by, the jury beyond a reasonable doubt.

The record reflects that, at the beginning of trial, just before the venire was brought into the courtroom, the State requested that the trial court instruct the jury on the firearm enhancement in § 13A-12-231(13) and allow the jury to determine its applicability. The record contains no notice to Lightfoot from the State of its intent to seek application of the enhancement before the State requested the jury instruction at the beginning of trial. Lightfoot objected to the State’s requested instruction on the ground that the enhancement was “not a part of the indictment and we were not notified that we would be defending that.” (R. 37.) The trial court did not rule on the State’s request or Lightfoot’s objection, stating instead “I haven’t decided what I’m going to do yet.” (R. 37.) The record reflects no further discussion of the requested jury instruction, Lightfoot’s objection, or the enhancement. In addition, the trial court did not instruct the jury on the enhancement, and Lightfoot lodged no objection to the trial court’s failure to instruct the jury on the enhancement.

At the sentencing hearing, the trial court sentenced Lightfoot to a total of 15 years’ imprisonment for the trafficking conviction, which included the 5-year enhancement in § 13A-12-231(13) for possession of a firearm during the commission of the crime, and ordered Lightfoot to pay fines totaling $75,000 — $50,000 for his trafficking conviction under § 13A-12-231 (2)a., plus an additional $25,000 for possession of a firearm during the commission of the crime under § 13A-12-231(13). Lightfoot objected to the application of the sentence enhancement but not on the grounds he now raises on appeal. However, Lightfoot filed a timely motion to reconsider his sentence, in which (1) he argued that application of the firearm enhancement to his sentence for the trafficking conviction violated Apprendi and its progeny because the jury did not find, beyond a reasonable doubt, that he possessed a firearm during the commission of the crime, and (2) he reiterated the argument he had made previously that he had not received notice, a reasonable time before trial, of the State’s intent to seek application of the enhancement. The trial court denied the motion.

In Apprendi, the United States Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. In Poole v. State, 846 So.2d 370 (Ala.Crim.App.2001), this Court analyzed the holding in Apprendi and its impact on Alabama’s sentence-enhancement statutes, which operate to increase the statutory maximum sentence for a crime. This Court held that although such sentence enhancements must be proven to a jury beyond a reasonable doubt under Apprendi, they do not have to be charged in an indictment. 846 So.2d at 381-87. This Court also held, however, that Apprendi required pretrial notice of the State’s intent to seek application of such enhancements:

“Although we do not believe it is necessary, or even the better practice, to charge any applicable sentencing enhancement in the indictment, a defendant must be given notice that the State intends to seek an additional penalty under § 13A-12-250 and/or § 13A-12-270. This notice requirement is sufficient to comply with the requirements of due process. Art. I, § 6, Ala. Const.1901. This view is also consistent with our caselaw on the application of the Habitual Felony Offender Act. See Connolly v. State, 602 So.2d 452 (Ala.1992), and Rule 26.6(b)(3)(ii), Ala. R.Crim. P. Rule 26.6(b)(3)(h) states: ‘At a reasonable time prior to the [sentencing] hearing, the defendant shall be given notice of the prior conviction or convictions upon which the state intends to proceed.’ Because Apprendi mandates that any fact that increases the sentence be submitted to a jury, we believe that notice of intent to seek a sentencing enhancement should be given at a reasonable time before the start of the trial.”

846 So.2d at 387-88 (footnote omitted). Finally, this Court held that an Apprendi violation is not a structural defect but is a constitutional defect that must be timely objected to in the trial court in order to be reviewed on appeal and that is subject to a harmless-error analysis. 846 So.2d at 380-81.

Based on Poole, Lightfoot’s argument that the enhancement in § 13A-12-231(13) was improperly applied to his sentence because it had not been charged in the indictment is clearly meritless because the enhancement did not have to be charged in the indictment. However, Lightfoot’s arguments that the enhancement was improperly applied to his sentence because he had not received notice, a reasonable time before trial, of the State’s intent to seek application of the enhancement and because the enhancement was not proven to the jury beyond a reasonable doubt are meritorious.

The record affirmatively reflects that the jury was not instructed on the enhancement and returned no verdict finding beyond a reasonable doubt that Light-foot was armed with a firearm during the commission of the crime. The record also reflects that Lightfoot did not receive notice before trial of the State’s intent to seek application of the enhancement. Rather, Lightfoot was not notified until just before voir dire began, when the State requested that the jury be instructed on the enhancement.

There is no Alabama case specifically addressing what constitutes reasonable pretrial notice under Apprendi and Poole; in Poole, this Court simply held, as noted above, that notice “be given at a reasonable time before the start of the trial.” 846 So.2d at 388. However, as this Court also noted in Poole, the notice requirement under Apprendi is consistent with Alabama caselaw regarding application of the Habitual Felony Offender Act (“the HFOA”). See Rule 26.6(b)(3)(ii), Ala. R.Crim. P. In this regard, the Alabama Supreme Court has held that generally, the “[determination of the ‘reasonableness’ of the notice period is left to the trial judge’s discretion,” Connolly v. State, 602 So.2d 452, 454 (Ala.1992), although that discretion “is subject to the ‘rules of reasonableness, fair play, and due process.’ ” Ex parte Crews, 797 So.2d 1119, 1123 (Ala.2000) (quoting Capps v. State, 630 So.2d 486, 489 (Ala.Crim.App.1993)). Both this Court and the Alabama Supreme Court have held that notifying a defendant of the State’s intent to seek sentence enhancement under the HFOA only moments before the sentencing hearing is scheduled to begin is not reasonable. See Ex parte Crews, 797 So.2d at 1123 (holding that notice 15 minutes before sentencing hearing began was not reasonable); and Bogan v. State, 607 So.2d 322, 324-25 (Ala.Crim.App.1992) (upholding trial court’s refusal to sentence defendant under HFOA where State provided notice only five minutes before the sentencing hearing began).

The same is true for the pretrial notice required when the State seeks application of 'other sentence enhancements that fall under the holding in Apprendi. In this case, it is clear that Lightfoot did not receive notice of the State’s intent to seek to apply the firearm enhancement in § 13A-12-231(13) until only moments before the trial began. That notice was not reasonable.

Therefore, because the firearm enhancement in § 13A-12-231(13) was not proven to a jury beyond a reasonable doubt and because Lightfoot did not receive notice of the State’s intent to seek application of that enhancement a reasonable time before trial began, the trial court’s application of the enhancement to Lightfoot’s sentence was in violation of Apprendi However, that does not end our analysis.

As noted in Poole, an Apprendi violation is subject to a harmless-error analysis. Indeed, this Court has held that where application of a sentence enhancement does not increase a defendant’s sentence beyond the statutory maximum, any Apprendi error is harmless. See Jones v. State, 853 So.2d 1036, 1038 (Ala.Crim.App.2002) (“Jones’s total sentence was within the statutory range for unlawful distribution of a controlled substance .... Therefore, any error in enhancing Jones’s sentence in violation of Apprendi was harmless.”), and Pearson v. State, 794 So.2d 448, 449 (Ala.Crim.App.2001) (“[B]ecause the application of the enhancements did not increase the appellant’s sentence beyond the statutory maximum for unlawful distribution of a controlled substance, any error was harmless, and the Supreme Court’s decisions in Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999),] and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), do not require that the enhancement portions of the sentence be set aside.”).

With respect to Lightfoot’s prison sentence, as noted above, Lightfoot was sentenced to a total of 15 years’ imprisonment for his trafficking conviction, a term that included the 5-year enhancement in § 13A-12-231(13). Trafficking in cocaine is a Class A felony, see § 13A-12-231(12), subject to imprisonment for life or not more than 99 years’s imprisonment or less than 10 years’ imprisonment, see § 13A-5-6(a)(1), Ala.Code 1975. Lightfoot’s sentence was well within the statutory range for trafficking in cocaine. Therefore, any Apprendi errors in not providing Lightfoot with pretrial notice of the enhancement and in not proving the enhancement to the jury beyond a reasonable doubt were harmless with respect to Lightfoot’s 15-year prison sentence.

With respect to Lightfoot’s fines totaling $75,000, however, we must conclude that the Apprendi errors were not harmless. As Lightfoot points out in his application for rehearing, although this Court has never specifically applied the holding in Apprendi to criminal fines, only a few days after this Court initially affirmed this case by an unpublished memorandum, the United States Supreme Court issued its opinion in Southern Union Co. v. United States, — U.S. —, —, 132 S.Ct. 2844, 2357, 183 L.Ed.2d 318 (2012), in which the Court held “that the rule of Apprendi applies to the imposition of criminal fines.” Applying that holding here requires that this case be remanded.

Section 13A-12-231(2)a. mandates a fíne of $50,000 for a conviction of trafficking in cocaine if the amount of cocaine “[i]s 28 grams or more, but less than 500 grams.” Section 13A-12-231(13) mandates an additional $25,000 fine if the defendant possessed a firearm during the commission of the crime. Lightfoot was indicted for trafficking in “28 grams or more of cocaine.” (C. 13.) As noted above, Lightfoot was not indicted for, or given notice of, the firearm enhancement in § 13A-12-231(13), and that enhancement was not proven to the jury beyond a reasonable doubt. Therefore, the jury’s verdict finding Lightfoot guilty of trafficking in cocaine as charged in the indictment authorized only the $50,000 fine in § 13A-12-231(2)a, and did not authorize an additional $25,000 fine pursuant to § 13A-12-231(13). The trial court, however, imposed fines on Lightfoot totaling $75,000 for the trafficking conviction — the $50,000 fine pursuant to the jury verdict finding Lightfoot guilty of trafficking in cocaine pursuant to § 13A-12-231(2)a., and an additional $25,000 fine pursuant to the trial court’s finding at sentencing that Lightfoot possessed a firearm during the commission of the crime under § 13A-12-231(13). Lightfoot’s fines totaling $75,000 exceeded the statutory maximum authorized by the jury’s verdict; thus, we must remand this case for those fines to be set aside and for the trial court to impose the $50,000 fine authorized by the jury’s verdict pursuant to § 13A-12-231 (2)a.

We also note that, although the trial court imposed a $100 Alabama Forensic Services Trust Fund fee pursuant to § 36-18-7(a), Ala.Code 1975, for the trafficking conviction, it did not impose that fee for the possession conviction. Section 36-18~7(a) provides:

“Beginning October 1, 1995, in addition to all fines, fees, costs, and punishments prescribed by law, there shall be imposed or assessed an additional fee of one hundred dollars ($100) on any conviction in any court of the state for drug possession, drug sale, drug trafficking, and drug paraphernalia offense as defined in Sections 13A-12-211 to 13A-12-260, inclusive.”

(Emphasis added.) Lightfoot’s possession conviction pursuant to § 13A-12-214, Ala. Code 1975, although a misdemeanor, falls within the scope of § 36-18-7(a). Therefore, the trial court erred in not imposing a $100 forensic fee for the possession conviction.

Based on the foregoing, we grant Light-foot’s application for rehearing. We affirm Lightfoot’s convictions for trafficking in cocaine and for second-degree unlawful possession of marijuana. However, we remand this case for the trial court to set aside the fines totaling $75,000 imposed for the trafficking conviction and to impose the $50,000 fine set out in § 13A-12-231(2)a., and to assess an additional $100 forensic fee pursuant to § 36-18-7(a) for the possession conviction. Due return shall be filed with this Court within 42 days of the date of this opinion.

APPLICATION FOR REHEARING GRANTED; UNPUBLISHED MEMORANDUM OF JUNE 15, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING.

WINDOM, P.J., and WELCH, BURKE, and JOINER, JJ., concur.

      . Lightfoot conceded at trial, and concedes in his brief on appeal, that the State had a valid, race-neutral reason for striking Juror No. 26, who indicated during voir dire that she had a previous nolo contendere plea in Georgia for the same crime for which Lightfoot was on trial.

      . The prosecutor asked several questions about drugs. In doing so, the prosecutor indicated that his questions should be considered to cover both illegal drugs and alcohol.

      . Lightfoot argued at the sentencing hearing that although there was a pistol in the vehicle, nothing "associate[d] it with the possession of the drugs” and, thus, that the enhancement should not apply under the facts in his case. (R. 211.)

       Note from the reporter of decisions: On October 26, 2012, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


source: Caselaw Access Project

author: MAIN, Justice. MURDOCK, Justice SHAW, Justice

license: Public Domain

text:
    Ex parte Reginald Tyrone Lightfoot. (In re Reginald Tyrone LIGHTFOOT v. STATE of Alabama).
    1120200.
    Supreme Court of Alabama.
    July 12, 2013.

      John Robert Allen, Huntsville, for appellant.
    Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and P. David Bjurberg, asst. atty. gen., for appel-lee.
   MAIN, Justice.

Reginald Tyrone Lightfoot petitioned this Court for a writ of certiorari to review the judgment of the Court of Criminal Appeals affirming his conviction for trafficking in cocaine and his sentence of 15 years’ imprisonment. See Lightfoot v. State, 152 So.3d 434 (Ala.Crim.App.2012) (opinion on application for rehearing). This Court granted certiorari review to determine, as a matter of first impression, whether an Apprendi error in applying a sentence enhancement is automatically harmless when the erroneous application of the sentence enhancement does not increase the defendant’s sentence beyond the statutory maximum for the underlying offense. We hold that it is not, and we reverse the judgment of the Court of Criminal Appeals and remand the case.

I. Factual Background and Procedural History

The Court of Criminal Appeals summarized the facts in this case:

“The evidence adduced at trial indicated the following. On January 18, 2009, at approximately 4:00 a.m., Blake Dean, a patrol officer with the Huntsville Police Department, executed a traffic stop of a vehicle that had ‘swerved a few 'times across the line and had no tag light.’ ... The vehicle was being driven by Lightfoot; Brandy Newberry was a passenger in the vehicle. When Officer Dean approached the vehicle, he smelled the odor of marijuana emanating from inside the vehicle. When asked about the odor, Lightfoot said that he had been in a nightclub. Lightfoot also told Officer Dean that he had á pistol in the vehicle and that he had a permit for the pistol. Officer Dean then had Lightfoot and Newberry get out of the vehicle, and he searched the vehicle, finding what was later determined to be 42.4 grams of cocaine and 21.3 grams of marijuana in a purse on the passenger-side floorboard, and finding a pistol in the center console. Officer Dean first questioned Newberry about the narcotics. Based on her responses, he then, after advising Lightfoot of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), questioned Lightfoot about the narcotics. Lightfoot told Officer Dean that when he first saw Officer Dean’s emergency lights, he got the cocaine and marijuana out of the center console of the vehicle and gave them to Newberry, who put them in her purse.
“After both sides rested and the trial court instructed the jury on the applicable principles of law, the jury convicted Lightfoot of trafficking in cocaine ... as charged in the indictment.”

152 So.3d at 436-37.

As to Lightfoot’s allegation that the trial court erred in applying the sentence-enhancement provision in what was then § 13A-12-231(13), Ala.Code 1975 (possession of a firearm during a trafficking offense), to his sentence for the trafficking-in-eocaine conviction, the Court of Criminal Appeals stated:

“The record reflects that, at the beginning of trial, just before the venire was brought into the courtroom, the State requested that the trial court instruct the jury on the firearm enhancement in § 13A-12-231(13) and allow the jury to determine its applicability. The record contains no notice to Lightfoot from the State of its intent to seek application of the enhancement before the State requested the jury instruction at the beginning of trial. Lightfoot objected to the State’s requested instruction on the ground that the enhancement was ‘not a part of the indictment and we were not notified that we would be defending that.’ The trial court did not rule on the State’s request or Lightfoot’s objection, stating instead T haven’t decided what I’m going to do yet.’ The record reflects no further discussion of the requested jury instruction, Light-foot’s objection, or the enhancement. In addition, the trial court did not instruct the jury on the enhancement, and Light-foot lodged no objection to the trial court’s failure to instruct the jury on the enhancement.
“At the sentencing hearing, the trial court sentenced Lightfoot to a total of 15 years’ imprisonment for the trafficking conviction, which included the 5-year enhancement in § 13A-12-231(13) for possession of a firearm during the commission of the crime, and ordered Lightfoot to pay fines totaling $75,000 — $50,000 for his trafficking conviction under § 13A-12-231(2)a., plus an additional $25,000 for possession of a firearm during the commission of the crime under § 13A-12-231(13). Lightfoot objected to the application of the sentence enhancement but not on the grounds he now raises on appeal. However, Light-foot filed a timely motion to reconsider his sentence, in which (1) he argued that application of the firearm enhancement to his sentence for the trafficking conviction violated Apprendi and its progeny because the jury did not find, beyond a reasonable doubt, that he possessed a firearm during the commission of the crime, and (2) he reiterated the argument he had made previously that he had not received notice, a reasonable time before trial, of the State’s intent to seek application of the enhancement. The trial court denied the motion.”

152 So.3d at 441 (footnote and citations to record omitted).

Lightfoot appealed to the Court of Criminal Appeals. The Court of Criminal Appeals unanimously affirmed Lightfoot’s conviction for trafficking in cocaine but remanded the case to the trial court with directions as to sentencing concerning the reassessment of certain fines. On return to remand, the Court of Criminal Appeals unanimously affirmed Lightfoot’s sentence in an unpublished memorandum. Lightfoot v. State (No. CR-11-0494, October 26, 2012). Lightfoot timely sought certiorari review with this Court.

II. Standard of Review

Because this case involves a question of law — whether an Apprendi error in applying a sentence enhancement is automatically harmless when the erroneous application of the sentence enhancement does not increase the defendant’s sentence beyond the statutory maximum for the underlying offense — this Court applies a de novo standard of review. Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003) (providing that the standard of review for pure questions of law in a criminal case is de novo).

III. Analysis

The Court of Criminal Appeals concluded that the trial court’s application of the firearm enhancement to Lightfoot’s sentence violated Apprendi because the enhancement was not proven to the jury beyond a reasonable doubt and because Lightfoot did not receive notice of the State’s intent to seek application of the enhancement until moments before trial began, which notice the Court of Criminal Appeals held was unreasonable. The Court of Criminal Appeals, however, held that because the application of the sentence enhancement did not increase Light-foot’s sentence above the statutory maximum, then any error under Apprendi was harmless. Because this Court has not previously addressed whether an Apprendi error in applying a sentence enhancement can be harmless, we must first examine the development of the law in regard to Apprendi and harmless-error analysis.

A. Apprendi, Harmless Error, and Alleyne v. United States

The United States Supreme Court in Apprendi held that, under the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence in excess of the relevant statutory maximum must be found by a jury, not a judge, and must be established beyond a reasonable doubt, not merely by a preponderance of the evidence. 530 U.S. at 490. The Supreme Court subsequently, in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), however, drew a distinction between judicial fact-finding that increases the sentence beyond the statutory maximum sentence, which is prohibited under Apprendi, and judicial fact-finding that increases only the minimum mandatory sentence, which the Court held does not violate the Sixth Amendment. In Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), the United States Supreme Court held that an Apprendi error is subject to a harmless-error analysis and framed a test for determining whether such error is harmless.

Particularly relevant to our analysis in this case, in Washington v. Recuenco the jury found the defendant guilty of assaulting his wife with a deadly weapon, which-the information charged was “a handgun.” At sentencing, the judge found that the defendant was armed with a “firearm” and imposed the three-year mandatory sentence enhancement attendant to that finding, rather than the one-year enhancement attendant to the jury’s “deadly weapon” finding. On appeal, the State of Washington conceded that the three-year enhancement violated Apprendi, but argued that the error was harmless. The Washington Supreme Court, however, had concluded that an Apprendi error could never be harmless. The Supreme Court granted review solely to determine whether a harmless-error analysis applies to an Ap-prendi error.

The Court acknowledged that under Ap-prendi it “ha[d] treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt.” 548 U.S. at 220 (emphasis added). Accordingly, the Court found the case before it “indistinguishable from” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), explaining:

“The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of ‘armed with a firearm’ to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.”

Recuenco, 548 U.S. at 220.

Because the question of Apprendi error also involved judicial fact-finding versus jury fact-finding, the Court concluded that the harmless-error analysis applied in Neder also applied to the error in Recuen-co. Id. In Neder, the Court framed the test as follows: “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” Neder, 527 U.S. at 18. The Court concluded that the same harmless-error analysis developed in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and applied in cases concerning the erroneous admission of evidence under the Fifth and Sixth Amendments also applied to infringement of the jury’s fact-finding role under the Sixth Amendment. Neder, 527 U.S. at 18. The Court explained:

“[A] court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is ‘no,’ holding the error harmless does not ‘reflec[t] a denigration of the constitutional rights involved.’ Rose [ v. Clark], 478 U.S. [570,] 577 [ (1986) ].”

527 U.S. at 19. In Recuenco, the Supreme Court reversed the judgment of the Washington Supreme Court, holding that harmless-error analysis does apply to an Ap-prendi sentencing error.

On June 17, 2003, in Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the United States Supreme Court overruled Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), and applied Apprendi to increases in mandatory minimum sentences and held that because a mandatory minimum sentence increases the penalty for a crime, any fact that increases the mandatory minimum sentence is an “element” of the crime that must be submitted to the jury. In sum, Apprendi jury-trial rights now apply to increases in both mandatory maximum sentences and mandatory minimum sentences. The Supreme Court in Alleyne emphasized that a fact increasing either end of the sentencing range (the minimum or the maximum) produces a new penalty, constitutes an element of the offense, and must be found by the jury, regardless of what sentence the defendant might have received had a different range been applicable. — U.S. at -, 133 S.Ct. at 2162. With the above framework, we must now turn to the question whether the Apprendi error in this case was harmless.

B. Whether Apprendi Error Was Harmless in this Case

Lightfoot was convicted of trafficking in cocaine. See § 13A-12-231(2), Ala.Code 1975. Section 13A-12-231(12), Ala.Code 1975, classifies trafficking in cocaine as a Class A felony. The proper range of punishment for a person convicted of a Class A felony is “life or not more than 99 years or less than 10 years.” § 13A-5-6(a)(l), Ala.Code 1975. Lightfoot was sentenced to 15 years, which included 5 years for the firearm enhancement. See § 13A-12-231(13), Ala.Code 1975.

Applying the United States Supreme Court’s decisions to the facts of this case, we conclude that the Apprendi error in this case was not harmless. Instead, the trial court’s error in applying the firearm-enhancement provision to Lightfoot’s sentence without a jury’s finding the enhancement to exist beyond a reasonable doubt was not harmless. Under the Ap-prendi/Alleyne Sixth Amendment line of cases, because the finding that Lightfoot had in his possession a firearm during a drug-trafficking offense produces an increased penalty for Lightfoot, it constitutes an element of the offense, which must be found by the jury beyond a reasonable doubt, regardless of what sentence Lightfoot might have received had a different range been applicable. “ ‘Merely because [Lightfoot] could have been sentenced to [15] years does not mean he would have been if the trial judge had not considered the [firearm enhancement]. Harmless error cannot be based on such possibilities. Saltzburg, The Harm of Harmless Eiror, 59 Va. L.Rev. 988 (Sept. 1973).’ ” Ex parte Thomas, 435 So.2d 1324, 1326 (Ala.1982) (quoting Thomas v. State, 435 So.2d 1319, 1324 (Ala.Crim.App.1981) (Bowen, J. dissenting)). To the extent that Jones v. State, 853 So.2d 1036 (Ala.Crim.App.2002); Poole v. State, 846 So.2d 370 (Ala.Crim.App.2001); and Pearson v. State, 794 So.2d 448 (Ala.Crim.App.2001), are inconsistent with this opinion, they are overruled.

IV. Conclusion

Based on the foregoing, we reverse the judgment of the Court of Criminal Appeals as to Lightfoot’s sentence on the trafficking-in-cocaine offense, and we remand the cause for that court to order a new sentencing hearing consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and STUART, BOLIN, PARKER, and WISE, JJ., concur.

MURDOCK, J., concurs in the result.

SHAW and BRYAN, JJ., dissent in part and concur in the result.

MURDOCK, Justice

(concurring in the result).

The main opinion states that the “jury-trial right[]” recognized under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), “now applies] to increases in both mandatory maximum sentences and mandatory minimum sentences.” 152 So.3d at 450. Although this is true, it does not in my view fully express the reason for which a sentence enhancement — any sentence enhancement — must be considered by a jury.

My view in this regard aligns with that of Justice Shaw as explained in the first four paragraphs of his special writing in the present case, including particularly the passage he quotes from his own special writing as a judge on the Court of Criminal Appeals in Poole v. State, 846 So.2d 370, 397-98 (Ala.Crim.App.2001) (Shaw, J., concurring in the result). That is, regardless whether we find ourselves near the bottom or the top or the middle of a sentencing range, there is validity in Justice Shaw’s criticism of “the idea that it is proper to assume that the trial court would have made the same sentencing decision had the impermissible sentencing enhancement not been considered.” 152 So.3d at 453. For that matter, authority cited by the main opinion at the close of its analysis is consistent with this view:

“ ‘ “Merely because [Reginald Tyrone Lightfoot] could have been sentenced to [15] years does not mean that he would have been if the trial judge had not considered the [firearm enhancement]. Harmless error cannot be based on such possibilities. Saltzburg, The Harm of Harmless Error, 59 Va. L. Rev. 988 (1973).” ’ Ex parte Thomas, 435 So.2d 1324, 1326 (Ala.1982) (quoting Thomas v. State, 435 So.2d 1319, 1324 (Ala.Crim.App.1981) (Bowen, J., dissenting)).”

152 So.3d at 450.

That said, I cannot go further and join Justice Shaw’s special writing. In this particular case, the indictment did not include allegations sufficient to put Lightfoot on notice that he would be required to defend against a firearm enhancement; Lightfoot was not put on notice of the need to prepare for or to present a defense as to a firearm enhancement until the start of the trial. There is an entwinement between the due-process issue of notice and an opportunity to be heard regarding a sentence-enhancement issue and the ability to find harmless error arising from the separate fact that the issue ultimately was not presented to the jury. Specifically, the lack of notice could have affected the defendant’s preparation for trial and, as a result, the state of the record upon which an appellate court must determine whether “no rational jury, considering the element, would find it not to be proved.” 152 So.3d at 453 (Shaw, J., dissenting in part and concurring in the result). In fairness, therefore, we cannot use that record as the basis for concluding that any failure to have presented the issue to the jury was harmless. To borrow from the rationale articulated by Professor Saltzburg and quoted in the main opinion, 152 So.3d at 450, “merely” because of the “possibilit[y]” that the record would have been the same is not a sufficient basis on which to conclude that an error that could have affected that record is harmless.

Moreover, in the present case, the Court of Criminal Appeals specifically found “meritorious” “Lightfoot’s arguments that the enhancement was improperly applied to his sentence because he had not received notice, a reasonable time before trial, of the State’s intent to seek application of the enhancement.” Lightfoot v. State, 152 So.3d 434, 442 (Ala.Crim.App.2012) (opinion on application for rehearing). The Court of Criminal Appeals concluded that, “[i]n this case, it is clear that Lightfoot did not receive notice of the State’s intent to seek to apply the firearm enhancement in § 13A-12-231(13)[, Ala. Code 1975,] until only moments before the trial began. That notice was not reasonable.” 152 So.3d at 443.1 agree.

Accordingly, my agreement with Justice Shaw’s analysis must be fettered by the fact that we do not have before us a record unaffected by the State’s due-process violation to which to apply the harmless-error standard. I therefore concur in the result reached by the main opinion.

SHAW, Justice

(dissenting in part and concurring in the result).

The petitioner, Reginald Tyrone Light-foot, was convicted of trafficking in cocaine, see Ala.Code 1975, § 13A-12-231(2). He challenges whether his sentence was properly “enhanced” under Ala.Code 1975, § 13A-12-231(13), which essentially provided that any person who possessed a firearm during the commission of an offense falling within § 13A-12-231 would be sentenced to five years’ imprisonment “in addition to, and not in lieu of, the punishment otherwise provided .... ”

As the Court of Criminal Appeals held in its opinion in this case: “[T]he trial court’s application of the enhancement to Lightfoot’s sentence was in violation of Apprendi [ v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ].” Lightfoot v. State, 152 So.3d 434, 443 (Ala. Crim.App.2012) (opinion on application for rehearing). However, the court held that, because the application of the sentencing enhancement did not increase Lightfoot’s sentence beyond the statutory maximum penalty for the offense, any Apprendi error was harmless. See, e.g., Jones v. State, 853 So.2d 1036, 1038 (Ala.Crim.App.2002).

I have previously written, as a member of the Court of Criminal Appeals, as to why I believe such harmless-error analysis is incorrect:

“I simply cannot agree that a defendant suffers no substantial prejudice from an illegal, mandatory sentence, even when the sentence imposed does not exceed the statutory maximum. The harmless error approach ... appears to me to conflict with the rationale of this Court’s decisions in McClintock v. State, 773 So.2d 1057 (Ala.Crim.App.2000); Crenshaw v. State, 740 So.2d 478 (Ala.Crim.App.1998); and Pickens v. State, 475 So.2d 637 (Ala.Crim.App.1985). Of particular significance, I think, is this Court’s statement in Pickens:
“ ‘The State contends that since the appellant’s life sentence was within the allowable range of punishment, his sentence should stand. We cannot agree with this argument.
“ ‘The Alabama Supreme Court held in Ex parte Thomas, [435 So.2d 1324 (Ala.1982) ] [agreeing with Judge Bowen’s dissent in Thomas v. State, 435 So.2d 1319 (Ala.Crim.App.1981) ] that merely because a trial judge could have sentenced a defendant to a particular sentence does not necessarily mean that he would have imposed that particular sentence had he not considered improper matters.’
“4[7]5 So.2d at 640. (Emphasis in original.)”

Poole v. State, 846 So.2d 370, 397-98 (Ala.Crim.App.2001) (Shaw, J., concurring in the result) (footnote omitted).

In Poole, I criticized the idea that it is proper to assume that the trial court would have made the same sentencing decision had the impermissible sentencing enhancement not been considered. However, in the instant case, it appears that we know that the enhancement caused the trial court to make a different sentencing decision. At the sentencing hearing, the trial court sentenced Lightfoot to 15 years’ imprisonment and described the sentence as follows: “Of that 15, you will have 2 mandatory, by law, minimum sentences to fulfill. One is a 3-year sentence that is mandatory, by statute, based on the trafficking offense. Another is the 5 years additional that is mandatory, based on a firearm involved in this case.” I see nothing that would allow me to assume that, without the firearm enhancement, Lightfoot would have received the same sentence. Thus, the error in applying the firearm enhancer ment is not harmless. I would reverse the Court of Criminal Appeals’ decision in this respect, and I concur in the main opinion’s decision to do so.

Nevertheless, the State offers another rationale for why the Apprendi error in this case was harmless. Under Apprendi, the firearm enhancement is essentially considered an element of the offense that must be decided by the jury in order for the enhancement to be applied. As the main opinion notes, the United States Supreme Court has held that the failure of a jury to decide such an Apprendi element is harmless error if no rational jury, considering the element, would find it not to be proved. See Washington v. Recuenco, 548 U.S. 212, 218-22, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (citing Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)).

The Court of Criminal Appeals did not discuss this issue in its decision (and it did not need to, because it found different grounds on which to affirm the trial court’s judgment). I would remand the case to the Court of Criminal Appeals to examine whether this issue is available to affirm the trial court’s decision. I thus dissent from the portion of the main opinion remanding the case for a new sentencing hearing.

BRYAN, J., concurs.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Effective May 10, 2012, a subsection was added to § 13A-12-231, and § 13A-12-231(13) was renumbered as § 13A-12-231(14), Ala.Code 1975. See Act No. 2012-267, Ala. Acts 2012.

      . Lightfoot was also convicted of the unlawful possession of marijuana in the second degree. The trial court sentenced Lightfoot to one year’s imprisonment for the possession conviction and ordered him to pay a $500 fine. Lightfoot’s appeal to the Court of Criminal Appeals also challenged that conviction and sentence. The Court of Criminal Appeals affirmed his conviction and sentence for the unlawful possession of marijuana. The possession conviction is not before us on certio-rari review.

      . We note that Apprendi and its progeny do not discuss a reasonable-notice requirement. Because we granted certiorari review only as to the issue whether a harmless-error analysis can be applied to the Apprendi error in this case, we pretermit discussion of the issue regarding the reasonableness of the notice.

      . Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), was overruled when the Supreme Court released its opinion in Alleyne v. United States, - U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), on June 17, 2013.

      . Now § 13A — 12—231(14), Ala.Code 1975. See supra note 2.

      . Effective May 10, 2012, § 13A-12-231(13) was redesignated as § 13A-12-231(14). See Act No. 2012-267, Ala. Acts 2012.

      . This Court did not grant certiorari review to determine whether the Court of Criminal Appeals correctly held that Apprendi was violated; I thus express no opinion regarding the United States Supreme Court's recent decision in Alleyne v. United States, — U.S.—, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).


text:
    Reginald Tyrone LIGHTFOOT v. STATE of Alabama.
    CR-11-0376.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 2013.
    John Robert Allen, Huntsville; and Randall O. Gladden, Huntsville, for appellant.
    Luther Strange, atty. gen. and P. David Bjurberg, asst. atty. gen., for appellee.
   After Remand by the Alabama Supreme Court

KELLUM, Judge.

In accordance with the Alabama Supreme Court’s opinion in Ex parte Lightfoot, 152 So.3d 445 (Ala.2013), we remand this case for the trial court to resentence Reginald Tyrone Lightfoot for his conviction for trafficking in cocaine without application of the firearm enhancement in former § 13A-12-231(13), Ala.Code 1975 (now § 13A-12-231(14), Ala.Code 1975). Due return shall be filed within 63 days from the date of this opinion and shall include a transcript of the resentencing hearing and the trial court’s amended sentencing order.

REMANDED WITH DIRECTIONS.

WINDOM, P.J., and WELCH, BURKE, and JOINER, JJ., concur.

       Note from the reporter of decisions: On April 25, 2014, on return to second remand, the Court of Criminal Appeals affirmed, without opinion.


text:
    FLORIDA BOARD OF BAR EXAMINERS re W.M.K.
    No. SC14-1330.
    Supreme Court of Florida.
    Aug. 29, 2014.
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and W.M.K. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of five years.

2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);
(c) participate actively in the program offered by FLA during the entire probationary period by complying with the rehabilitation contract with that organization executed on October 28, 2018, and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of his affairs and carry the AA/NA message to other substance dependent individuals;
(e) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA;
(f) continue to consult with Louise Buhrmann, MD, PA, or other licensed mental health provider, at least, quarterly or more frequently as his mental health provider deems necessary;
(g) follow promptly, diligently, and completely, all instructions by his mental health provider, including the taking of any medication in the recommended manner as may be prescribed by his mental health provider;
(h) have his mental health provider submit quarterly reports to The Florida Bar during the entire probationary period. These reports shall confirm the Applicant’s consultations for the preceding quarter and shall advise The Florida Bar of the Applicant’s continuing ability to engage in the active practice of law;
(i) obtain an agreement from his mental health provider stating that the mental health provider will immediately notify The Florida Bar if the applicant misses a scheduled appointment without prior rescheduling; and,
(j) submit quarterly sworn statements to The Florida Bar by March 31, June 80, September 30, and Decem- ■ ber 31 during the probationary period attesting to his compliance with the conditions set forth in 2(a), (b), (c), (d), (e), (f), (g), (h), and (i) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside, Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


text:
    FLORIDA BOARD OF BAR EXAMINERS re A.S.N.
    No. SC14-1457.
    Supreme Court of Florida.
    Aug. 29, 2014.
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and A.S.N. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of two years.

2. During the period of probation, the applicant shall:

(a) continue to consult with George M. Joseph, M.D., or other licensed mental health provider, at least, quarterly or more frequently as her mental health provider deems necessary;
(b) follow promptly, diligently and completely all instructions by her mental health provider including the taking of any medication in the recommended manner as may be prescribed by her mental health provider;
(c) have her mental health provider submit quarterly reports to The Florida Bar during the entire probationary period. These reports shall confirm the Applicant’s consultations for the preceding quarter and shall advise The Florida Bar of the Applicant’s continuing ability to engage in the active practice of law;
(d) obtain an agreement from her mental health provider stating that the mental health provider will immediately notify The Florida Bar if the Applicant misses a scheduled appointment without prior rescheduling; and
(e) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to her compliance with the conditions set forth in 2(a), (b), (c), and (d) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the- applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender her license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate her license.

5. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

6. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

7. The Applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution or the filing of any grievance or complaint related to the Applicant’s practice of law.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


text:
    Ernest SUGGS, Appellant(s) v. STATE of Florida, Appellee(s).
    No. SC13-445.
    Supreme Court of Florida.
    Sept. 4, 2014.
    Rehearing Denied Dec. 2, 2014.
   Ernest Suggs, a prisoner under a sentence of death, appeals the denial of his motion for appointment of registry counsel in connection with a prospective successive motion for postconviction relief he intends to file pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V. § 3(b)(1), Fla. Const.

This Court affirmed Mr. Suggs’ conviction for first-degree murder and his sentence of death on direct appeal in Suggs v. State, 644 So.2d 64 (Fla.1994). Subsequently, this Court affirmed the denial of Mr. Suggs’ motion for postconviction relief and denied his petition for writ of habeas corpus alleging ineffective assistance of appellate counsel, both of which were litigated by Mr. Suggs’ then-privately retained counsel Hilliard Moldof. Suggs v. State, 923 So.2d 419 (Fla.2005).

In March 2006, the United States District Court for the Northern District of Florida appointed Florida attorney Martin J. McClain to represent Mr. Suggs in federal court. The Court of Appeals for the Eleventh Circuit affirmed the district courts’ denial of Mr. Suggs’ petition for habeas corpus in Suggs v. McNeil, 609 F.3d 1218 (11th Cir.2010), and the United States Supreme Court denied his petition for writ of certiorari in Suggs v. Buss, — U.S.—, 131 S.Ct. 1809, 179 L.Ed.2d 659 (2011).

On August 27, 2012, Attorney McClain filed a motion pursuant to sections 27.7001, 27.710, and 27.711, Florida Statutes (2011) with the Circuit Court of the First Judicial Circuit, requesting that he be appointed to represent Mr. Suggs as registry counsel in any successive postconviction relief proceedings in state courts. The circuit court entered an order denying the motion for appointment of registry counsel on February 15, 2013. On or about March 15, 2013, as pro bono counsel, Attorney McClain filed a notice of appeal with this Court seeking review of the circuit court’s order.

Because Mr. Suggs’ death sentence has not been carried out and the record is devoid of any evidence showing that the circuit court entered an order terminating Attorney Moldofs status as Mr. Suggs’ counsel of record, we find that Attorney Moldof is presently Mr. Suggs’ counsel of record in state courts. See Fla. R. Jud. Admin.' 2.505(f)(l)-(3) (outlining modes by which an attorney’s appearance for a party terminates); see also Van Poyck v. State, No. 73,662 (Fla. May 10, 2013) (Order Remanding Case for Determination of Counsel of Record).

Attorney Moldof shall maintain his status as Mr. Suggs’ counsel of record unless Attorney Móldof has previously obtained a court order releasing him from representation, or until such a court order issues. Accordingly, we dismiss without prejudice for the circuit court to consider appointment of new counsel under the registry statute should existing counsel obtain permission to withdraw from representation. At such time, Mr. Suggs may then file with the circuit court a subsequent motion for appointment of registry counsel.

It is so ordered.

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


text:
    FLORIDA BOARD OF BAR EXAMINERS re J.P.A.
    No. SC14-1574.
    Supreme Court of Florida.
    Sept. 4, 2014.
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and J.P.A. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of two years.

2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);
(c) participate actively in the program offered by FLA during the entire probationary period by complying with the rehabilitation contract with that organization executed on August 6, 2013 and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending weekly meetings at such frequency as required by FLA; practice AA/NA principles in all of his affairs; and carry the AA/NA message to other substance dependent individuals;
(e) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA; and
(f) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2(a), (b), (c), (d) and (e) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 8 or 9 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


text:
    FLORIDA BOARD OF BAR EXAMINERS re Noah Daniel LIBERMAN.
    No. SC14-1565.
    Supreme Court of Florida.
    Sept. 5, 2014.
   AMENDED ORDER

Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and Noah Daniel Liberman shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of three years.

2. During the period of probation, the applicant shall:

(a)abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);
(c) participate actively in the program offered by FLA during the entire probationary period by complying with the rehabilitation contract with that organization executed on September 27, 2011, and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings at such frequency as required by FLA; practice AA/NA principles in all of his affairs and carry the AA/NA message to other substance dependent individuals;
(e) undergo quarterly screening, or screening at such greater frequency as required by FLA to assure screens are random, consisting of a multi-panel test for drugs plus EtG testing for alcohol, on randomly selected dates with notice of four hours or less at the direction of The Florida Bar to verify his abstinence from the use of alcohol and controlled substances; and
(f) submit quarterly' sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2(a), (b), (c), (d) and (e) above.

3.The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1 — 3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during thé period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 8 or 9 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.