author: PITTMAN, Judge.

text:
    Jean CLEMONS v. Justine HOWARD.
    2110744.
    Court of Civil Appeals of Alabama.
    April 12, 2013.

      Stephen K. Winters of Thompson, Thompson & Winters, Butler, for appellant.
    Nathan G. Watkins, Jr., of Watkins Cross, LLC, Livingston, for appellee.
   PITTMAN, Judge.

Jean Clemons appeals from a judgment in a sale-for-division action insofar as the judgment determined that Raymond Mitchell (“Raymond”), deceased, was the father of Justine Howard (“Justine”) and that Justine is the owner of an undivided one-half interest in 102 acres of real property in Choctaw County (“the property”). We reverse and remand with instructions.

Raymond and his brother, Jessie Mitchell (“Jessie”), deceased, each owned an undivided one-half interest in the property when Raymond died intestate in 1975. Jessie died testate in 1989, and his will was probated. In 2010, Justine sued Clemons and other persons who were potential devi-sees of Jessie’s undivided one-half interest in the property. Justine alleged that Raymond’s undivided one-half interest in the property had passed to her by intestate succession upon his death in 1975 because, Justine alleged, she was Raymond’s only child. Justine also alleged that the property could not be equitably partitioned and sought a judgment ordering a sale of the property and a division of the proceeds of the sale among the owners of the property. Clemons and the other defendants answered Justine’s complaint with a general denial but did not plead any affirmative defenses.

The trial court received evidence ore tenus at a trial that began in March 2011 but was recessed after one day of testimony and concluded in October 2011. The issues tried were (1) whether Raymond was Justine’s father, (2) who was the owner of the undivided one-half interest in the property Raymond had owned when he died, (3) who were the owners of the undivided one-half interest in the property Jessie had owned when he died, and (4) whether the property could be equitably partitioned. In January 2012, the trial court entered a judgment finding that Raymond was Justine’s father; finding that Raymond’s undivided one-half interest in the property had passed to Justine by intestate succession when Raymond died in 1975 and, therefore, that she was the owner of that undivided one-half interest in the property; finding that Clemons and one of the other defendants owned the other undivided one-half interest in the property; finding that the property could not be equitably partitioned; and ordering that the property be sold and the proceeds of the sale divided among the owners. The portion of the judgment pertinent to this appeal stated:

“1. Plaintiff Justine Howard is the owner of an undivided one-half (1/2) interest in the [property], having inherited this interest from her father, Raymond Mitchell. Although [Justine’s] mother was never married to Raymond Mitchell, the Court finds that, pursuant to Code of Ala.1975, § 26-17~m(a)(5), Raymond Mitchell, openly held out Justine Howard as his natural child and established a significant parental relationship with her by providing emotional and financial support for her, thus creating a presumption of paternity, which was not rebutted by any competent, admissible evidence submitted by the Defendants.”

(Emphasis added.)

Clemons timely filed a Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate the judgment or, in the alternative, to grant a new trial (“the postjudgment motion”). Among other things, the post-judgment motion asserted that the trial court should alter, amend, or vacate the judgment because, Clemons said, § 26-17-204(a)(5), Ala.Code 1975, which is a part of the Alabama Uniform Parentage Act (2008), § 26-17-101 et seq., Ala.Code 1975 (“the 2008 AUPA”), did not apply to the determination whether Raymond was Justine’s father because, Clemons .said, § 26-17-608, Ala.Code 1975, which is also a part of the 2008 AUPA, requires that the man whose paternity is to be adjudicated under the 2008 AUPA must be joined as a party to the proceeding and Raymond could not be joined as a party because he had died in 1975. The postjudgment motion also asserted that the judgment should be altered, amended, or vacated because, Clemons said, Justine’s claim seeking a determination that Raymond was her father was barred by the statute of limitations in § 6-2-38, Ala.Code 1975. In the alternative, the postjudgment motion asserted that a new trial should be granted because, Clemons said, she had newly discovered evidence in the form of a 1938 school census in the records of the Choctaw County Board of Education (“the 1938 school census”) indicating that Sanders Howard was Justine’s father. Following a hearing, the trial court entered an order denying the postjudgment motion in April 2012. In that order, the trial court ruled that § 26-17-603 did not apply to the determination whether Raymond was Justine’s father; that the defense of the statute of limitations, which had been raised for the first time in the postjudgment motion, was an affirmative defense that had been waived by the defendants’ failure to plead it in their answer; and that the 1938 school census did not warrant the granting of a new trial because it had been available and discoverable before the trial and because, if presented at trial, it would not have outweighed the evidence indicating that Raymond was Justine’s father. Thereafter, Clemons timely appealed, and the supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Because the trial court received evidence ore tenus, our review is governed by the following principles:

“““[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpá-bly erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

Initially, we note that Clemons has not presented argument to this court regarding the issue whether Justine’s claim seeking an adjudication that Raymond was her father is barred by the statute of limitations. Therefore, she has waived that issue. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”).

Clemons argues that the trial court erred in denying her postjudgment motion insofar as it sought a new trial.

“It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge. The exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.”

Hitt v. Sherwood, 488 So.2d 1357, 1359 (Ala.1986).

“The criteria for granting a new trial based on newly discovered evidence are set out in Forest Investment Corp. v. Commercial Credit Corp., 271 Ala. 8[, 12], 122 So.2d 131[, 135] (1960). The criteria are:
“(1) the evidence will change the result of the trial;
“(2) the evidence has been discovered since trial;
“(3) the .evidence could not have been discovered by due diligence;
“(4) the evidence is material;
“(5) the evidence is not merely cumulative or impeaching.”

Eastwood Lands, Inc. v. Walter Carlos Anderton, Inc., 412 So.2d 247, 249 (Ala.1982).

In pertinent part, the trial court’s order denying the postjudgment motion stated:

“The [1938 school census] was available and discoverable and could have been presented at the trial held in this case on March 30, 2011 and on October 5, 2011, at which time it could have been properly offered as evidence in this case, with [Justine’s] having an opportunity to object to its admission, cross-examine the custodian of the records being offered and question the authenticity of the records relied on. The Court further notes that this record only reflects that Justine Howard’s mother was living with, and possibly, married to, Sanders Howard at the time, when [Justine] was 11 years old, and this evidence, of itself, would not be sufficient to rebut the presumption of paternity of Raymond Mitchell raised by the testimony and evidence received and admitted at the trial of this case.”

With regard to the issue whether the 1938 school census was available and discoverable before the trial, Clemons argues:

“[I]t was not until trial when the defendants learned that [Justine] did not have a birth certifícate. Obviously, a birth certificate would establish a presumption of paternity. Furthermore, [Justine] testified that she believed the school she attended was ‘Mary Rose.’ Despite [Justine’s] recollection of the incorrect school name, the defendants were able to obtain the certified record [of the 1938 school census] post trial and subsequently provided [it] to the trial court as part of the [postjudgment] motion.”

First, we note that Clemons does not explain why she did not attempt to learn through pretrial discovery whether Justine had a birth certificate or where she had attended school. Second, the record on appeal indicates that Justine testified that she did not have a birth certificate and that the school she attended was named Mary Rose on the first day of trial in March 2011, yet Clemons does not explain why she did not discover the 1938 school census during the more than six-month recess between the first day of trial in March 2011 and the second day of trial in October 2011. For all that appears in the record, Clemons could have discovered the 1938 school census through pretrial discovery before the trial began in March 2011 or during the more than six-month recess in the trial after learning on the first day of trial that Justine did not have a birth certificate. Accordingly, Clemons has not shown that she exercised due diligence in seeking the 1938 school census and that, despite having exercised such due diligence, she could not have discovered the 1938 school census until after the trial had been concluded. Consequently, we conclude that the trial court’s denial of the postjudgment motion insofar as it sought a new trial was a proper exercise of the trial court’s discretion.

Finally, Clemons argues that the trial court erred in applying § 26-17-204(a)(5) to the determination whether Raymond was Justine’s father.

“The law concerning the right of an illegitimate child to inherit through intestate succession has seen many changes over the years. At common law, an illegitimate child, who had not been legitimated, was considered the child of no one and could inherit from no one. See Williams v. Witherspoon, 171 Ala. 559, 55 So. 132 (1911). The courts considered an illegitimate child ‘nullius films,’ the ‘heir to nobody,’ and thus, the child ‘ha[d] no ancestor from whom any inheritable blood [could] be derived.’ Lingen v. Lingen, 45 Ala. 410, 413 (1871) (quoting 1 Wendell’s Blackstone, 459).
“By 1929, in the case of Moore v. Terry, 220 Ala. 47, 124 So. 80 (1929), overruled in part by Everage v. Gibson, [372 So.2d 829 (Ala.1979) ], this Court had recognized that an illegitimate child, who had not been legitimated, could inherit from his mother, but not from his father, even if paternity was shown. This change was also reflected in Code 1940, Tit. 16, § 6, which provided that ‘[e]very illegitimate child is considered as the heir of his mother, and inherits her estate in whole or in part, as the case may be, in like manner as if born in lawful wedlock.’ Later, in Hudson v. Reed, 259 Ala. 340, 66 So.2d 909 (1953), this Court described the common law rule as a ‘harsh rule,’ and held that an illegitimate child, because of this statute, could inherit not only from his mother but also through his mother.
“Between 1929 and 1979, however, the law in Alabama recognized only the following two methods by which an illegitimate child could be legitimated in order to inherit from its father through intestate succession: 1) by marriage of the parents, accompanied by the father’s recognition of the child; or 2) by a written declaration, attested by two witnesses, and filed with the judge of probate. See Moore, 220 Ala. 47, 124 So. 80 (1929); see also Code 1928, §§ 9299, 9300, later codified at Code 1940, Tit. 27, §§ 10, 11, and Code 1975, §§ 26-11-1, 26-11-2.
“After the United States Supreme Court decided the cases of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), and Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), Alabama’s law concerning the right of an illegitimate child to inherit from its father changed dramatically. In Trimble, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the Court found an Illinois statute, much like Alabama’s Code 1975, §§ 26-11-1 and 26-11-2, which set forth the two methods of legitimation discussed above, to be unconstitutional under an equal protection challenge ....
“... In Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), the United States Supreme Court upheld, as constitutional, a similar New York statute because it provided that an illegitimate child could inherit from its father if there had been a judicial determination of paternity before the father’s death.
“Consequently, in 1979, this Court, in the case of Everage v. Gibson, 372 So.2d 829 (Ala.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1322, 63 L.Ed.2d 765 (1980), in order to avoid finding Alabama’s statutory scheme for intestate succession unconstitutional, construed it to include a third method of legitimation, i.e., a judicial determination of paternity made within two years of birth and during the father’s lifetime. The Everage Court gleaned this third method from the child support statutes found at Code 1975, § 26-12-1 et seq. In 1982, the Alabama legislature superseded Everage and wrote this procedure into the Probate Code itself, in § 43-8^48, which provides that an illegitimate child is considered to be the child of the father if the parents marry or if paternity is established by an adjudication before the death of the father or thereafter by clear and convincing proof. Then, in addition, in 1984, the legislature repealed Code 1975, § 26-12-1 et seq., and replaced those sections with the Alabama Uniform Parentage Act, found at Code 1975, § 26-17-1 et seq. Like the child support statutes it replaced, the AUPA sets forth a mechanism whereby a judicial determination of paternity can be made. Therefore, there are presently two statutory schemes for judicial determination of paternity, one in the Probate Code and one in the AUPA.”

Stone v. Gulf American Fire & Cas. Co., 554 So.2d 346, 363-67 (Ala.1989) (footnotes omitted). Subsequent to the supreme court’s decision in Stone v. Gulf American Fire & Casualty Co., Act No. 2008-376, Ala. Acts 2008, repealed the original Alabama Uniform Parentage Act, § 26-17-1 et seq., Ala.Code 1975, effective January 1, 2009, and replaced it with the 2008 AUPA, which became effective the same day. Thus, there are presently two statutory schemes for judicial determination of paternity, one in the Probate Code, § 43-8-1 et seq., Ala.Code 1975, and one in the 2008 AUPA.

When Raymond died in 1975, however, Alabama law did not allow a child born out of wedlock to inherit by intestate succession from his or her father unless the child had been legitimated “1) by marriage of the parents, accompanied by the father’s recognition of the child; or 2) by a written declaration, attested by two witnesses, and filed with the judge of probate.” Stone v. Gulf American Fire & Cas. Co., 554 So.2d at 864 (footnote omitted). In the present case, the record does not indicate that Justine was legitimated by either of those methods. However, the Alabama law governing the right of a child born out of wedlock to inherit by intestate succession from his or her father that was in effect when Raymond died in 1975 has subsequently been held unconstitutional. See Stone v. Gulf American Fire & Cas. Co., 554 So.2d at 368. In Stone v. Gulf American Fire & Cas. Co., the supreme court stated:

“We recognize that the law at the time of [the] father’s death had not yet recognized the third method of legitimation for purposes of intestate succession, i.e., a judicial determination of paternity; however, we also recognize that the law as it existed at that time has since been found to be unconstitutional by the United States Supreme Court in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), and by this Court in Everage v. Gibson, 372 So.2d 829 (Ala.1979).
“In an action, such as the present one, that is not time-barred and is properly before this Court, we are bound to apply a constitutional law as it exists at the time the appeal is heard. This situation has been addressed by this Court and the Court of Civil Appeals in the cases of Cotton v. Terry, 495 So.2d 1077 (Ala.1986); Abrams v. Wheeler, 468 So.2d 126 (Ala.1985); and Free v. Free, 507 So.2d 930 (Ala.Civ.App.1986).
“In Cotton, 495 So.2d 1077 (Ala.1986), an illegitimate child brought an action to establish paternity under Code 1975, § 43 — 8-48(2)(b), 11 years after the death of the alleged father. In construing § 43-8-48(2)(b), this Court held:
“ ‘[I]t may be seen from the plain language of the statute that paternity of an illegitimate child may be established after the death of the father through an adjudication supported by clear and convincing evidence. When so established, such a child may inherit from the father through intestate succession.’ ...
“Cotton, 495 So.2d at 1079. In Cotton, as in the present case, there was clear evidence that the alleged father recognized the child as his and held himself out as the child’s father. Yet, in Cotton, as in the present case, the law at the time of the alleged father’s death would not have recognized the child as an heir. Even so, this Court did not apply an unconstitutional law to the parties, but, rather, applied the law as it existed at the time of the appeal. Also, in Abrams v. Wheeler, 468 So.2d 126 (Ala.1985), an illegitimate child brought a paternity action before the death of the father, but after the expiration of the two-year limitations period that had been adopted in Everage, 372 So.2d 829 (Ala.1979). However, this Court refused to apply the two-year limitations period because it had since been found to be unconstitutional. Instead, it applied the law as it ■existed at the time of the appeal, and found the action not time-barred. Again, in Free v. Free, 507 So.2d 930 (Ala.Civ.App.1986), an illegitimate child brought an action under § 43 — 8—48(2)(b), not only after the death of the father, but also 20 years after the child had reached the age of majority. Despite the arguments by the legitimate heirs, the Court of Civil Appeals refused to apply the law in effect at the time of the death of the father or at the time of the birth of the child because that law had since been found unconstitutional.”

554 So.2d at 368 (emphasis added; original emphasis and footnote omitted). Thus, in the present case, because the law that governed whether a child born out of wedlock could inherit by intestate succession from his or her father when Raymond died in 1975 has subsequently been held unconstitutional, we must apply the constitutional law governing that issue that exists at the present time. See Stone v. Gulf American Fire & Cas. Co., supra.

Section 26-17-103, Ala.Code 1975, the Code section of the 2008 AUPA stating the scope of the application of the 2008 AUPA, provides that the 2008 AUPA “applies to determination of parentage in this state except for matters relating to legitimation and adoption.” § 26-17-103(a). Sections 26-11-1 and 26-11-2, Ala.Code 1975, provide for the legitimation of a child born out of wedlock and, therefore, constitute express exceptions to the application of the 2008 AUPA. The Alabama Adoption Code, § 26-10A-1 et seq., Ala.Code 1975, governs adoptions in Alabama and, therefore, constitutes an express exception to the 2008 AUPA. Section 43-8-48(2)b., Ala.Code 1975, a part of the Probate Code, provides, in pertinent part, that, “[i]f, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person[,]” a child born out of wedlock is the child of the father if “[t]he paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof....” (Emphasis added.) Although the 2008 AUPA does not expressly except from its application determinations of paternity for purposes of intestate succession pursuant to § 43-8^8(2)b., “[tjhere is a rule of statutory construction that specific provisions relating to specific subjects are understood as exceptions to general provisions relating to general subjects.” Murphy v. City of Mobile, 504 So.2d 243, 244 (Ala.1987). Section 43—8—48(2)(b) is a specific provision addressing the specific subject of judicial determinations of paternity for purposes of intestate succession, whereas the 2008 AUPA addresses judicial determinations of paternity in general. Accordingly, we conclude that § 43-8-48(2)b. constitutes an exception to the 2008 AUPA, see Murphy v. City of Mobile, supra, and that, therefore, § 43-8^48(2)b., rather than the 2008 AUPA governs judicial determinations of paternity for purposes of intestate succession.

Thus, in the present case, we conclude that, because Justine sought an adjudication of paternity for purposes of determining intestate succession, § 43-8-48(2)b., rather than the 2008 AUPA, governed the adjudication of the issue whether Raymond was Justine’s father. Consequently, the trial court erred in applying § 26-17-204(a)(5), a part of the 2008 AUPA, to that determination. Therefore, we reverse the judgment of the trial court insofar as it determined that Raymond was Justine’s father. Moreover, because the determination that Justine owned an undivided one-half interest in the property was dependent on the determination that Raymond was Justine’s father, we reverse the judgment of the trial court insofar as it determined that Justine owned an undivided one-half interest in the property. Furthermore, we remand the cause with instructions for the trial court (1) to determine whether Raymond was Justine’s father by applying § 43-8^48(2)b. to the evidence already presented and (2) to determine, based on the evidence already presented, who owns the undivided one-half interest in the property Raymond owned when he died.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and THOMAS and DONALDSON, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . When Raymond died in 1975, Title 16, § 1, Ala.Code 1940 (Recomp. 1958), provided, in pertinent part:
      "The real estate of persons dying intestate, as to such estate descends, subject to the payment of debts, charges against the estate, and the widow’s dower, as follows:
      "(1) To the children of the intestate, or their descendants, in equal parts.”

      . In pertinent part, § 35-6-20, Ala.Code 1975, provides that "[t]he circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common....” Section 35-6-22, Ala.Code 1975, provides that "[t]he court shall ascertain and declare the rights, titles and interest of all the parties to such action, the plaintiffs as well as the defendants, and shall give judgment according to the rights of the parties.” In pertinent part, § 35-6-23(a), Ala.Code 1975, provides:
      “If the title of the plaintiffs seeking partition or sale of lands for a division shall be controverted, or should the title or claim of any of the parties to the action be adverse to that of one or more of the other parties, the question of title shall be tried and determined in the action by the circuit court, which shall have power to determine all questions of title-”

      . Although a Rule 59, Ala. R. Civ. P., motion may be made only in reference to a final, appealable judgment, see Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003), in a sale-for-division action both the judgment ordering the sale and the judgment confirming the sale are final, appealable judgments, see Jetton v. Jetton, 502 So.2d 756, 759 (Ala.1987).

      . In pertinent part, § 26-17-204(a)(5) provides that a man is presumed to be the father of a child if,
      "while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child or otherwise openly holds out the child as his natural child and establishes a significant parental relationship with the child by providing emotional and financial support for the child.”

      . In pertinent part, § 6-2-33(2) provides that "[ajctions for the recovery of ... heredita-ments, or the possession thereof,” must be commenced within 10 years. In Blackmon v. Brazil, 895 So.2d 900, 909 (Ala.2004), the supreme court held that § 6-2-33(2) applies to a claim brought by a child bom out of wedlock who seeks an adjudication of paternity for purposes of intestate succession pursuant to § 43-8-48, Ala.Code 1975.

      . None of the other defendants filed a notice of appeal.

      . Section 26-11-1 provides that a child born out of wedlock may be legitimated by the marriage of the parents accompanied by the father's recognition of the child as his. Section 26-11-2 provides for legitimation of a child born out of wedlock by the father’s filing with the probate court of the father's or the child's residence a written declaration of legitimation attested by two witnesses.


source: Caselaw Access Project

license: Public Domain

text:
    William Eric MOYA v. Enoch CANTERBURY and Ruth Canterbury.
    2110525.
    Court of Civil Appeals of Alabama.
    April 12, 2013.
    J. Randolph Gillum of Rogers & Associates, Birmingham, for appellant.
    Champ Lyons III, Birmingham, for ap-pellees.
   PITTMAN, Judge.

William Eric Moya appeals from a judgment of the Jefferson Circuit Court denying him a trial by jury. We affirm.

On December 29, 2010, Enoch Canterbury and his wife, Ruth Canterbury, filed a complaint arising out of an automobile accident they asserted had been caused by Moya; in their complaint, they asserted claims of negligence and wantonness against Moya and a claim for uninsured/underinsured-motorist benefits against their automobile-insurance provider, Nationwide Mutual Fire Insurance Company (“Nationwide”). The complaint did not contain a demand for a jury trial. Nationwide filed an answer, asserting a number of defenses and demanding a trial by jury. Moya later filed an answer, generally denying the allegations of the complaint and asserting a number of defenses. Moya failed to demand a trial by jury in his answer.

Nationwide filed a motion to opt out and a motion in limine. In that motion, Nationwide opted out of any further proceedings, agreeing to be bound by the verdict to the extent of any underinsured-motorist-benefit limits of coverage and liability in its contract with the Canterburys beyond liability coverages available to Moya. Nationwide further requested the trial court to prohibit the Canterburys from introducing evidence or otherwise disclosing to the jurors or prospective jurors the existence of, or the amount of, Nationwide’s insurance coverage. On April 14, 2011, the trial court granted Nationwide’s motion.

The case was set for a jury trial. On May 3, 2011, however, the Canterburys filed an objection to the jury-trial setting and a motion for a nonjury-trial setting, arguing that Moya had failed to demand a jury trial on the claims asserted against him. Moya filed a response to that motion, asserting that Nationwide’s demand for a jury trial was sufficient to maintain the case on the jury-trial docket. The Canterburys filed a reply to Moya’s response.

On June 13, 2011, a hearing was held on the Canterburys’ motion, and the trial court granted that motion in an order entered that same day. A nonjury trial was set for December 5, 2011. On July 7, 2011, Moya filed a motion to reconsider the order setting a nonjury trial, asserting, among other things, that he had relied on the jury demand made by Nationwide. The Canterburys responded to Moya’s motion to reconsider, and, on August 12, 2011, the trial court denied Moya’s motion.

On January 24, 2012, the trial court entered a final judgment in favor of the Canterburys on their claims against Moya and dismissed their claims against Nationwide. Moya filed his notice of appeal to this court on March 1, 2012.

Moya raises only one issue on appeal: whether the trial court erred in denying him a jury trial. Rule 38(d), Ala. R. Civ. P., explains that a demand for a jury trial made in accordance with that rule may not be withdrawn without the consent of the parties. Moya asserts that he was entitled to rely on Nationwide’s demand for a trial by jury and that, because he had not consented to the withdrawal of that demand, he was entitled to a jury trial.

The Canterburys cite Rosen v. Dick, 639 F.2d 82, 92 (2d Cir.1980), for the proposition that, “[i]f the first [jury] demand does not cover issues pertinent to a second party, the second party cannot rely reasonably on the first demand.” See also In re N-500L Cases, 691 F.2d 15 (1st Cir.1982). Thus, the Canterburys argue that, because the claim asserted by the Canterburys against Nationwide was a separate and distinct claim than those asserted by the Canterburys against Moya, Moya could not rely on Nationwide’s jury demand. Moya asserts, however, that the cases cited by the Canterburys are not controlling and that the Alabama cases of Hester v. Posey, 684 So.2d 1347 (Ala.Civ.App.1996); Staik v. Jefferson Federal Savings & Loan Association of Birmingham, 434 So.2d 763 (Ala.1983); and Ex parte West, 797 So.2d 1070 (Ala.2001), demand a different conclusion in the present case.

In Staik v. Jefferson Federal Savings & Loan Association of Birmingham, 434 So.2d at 764, a claimant of funds that had been paid into court by a banking institution in an interpleader action was denied a trial by jury when he had filed an answer and counterclaim that did not include a jury demand. The other claimant, who had been made a defendant to the same claims as the claimant, subsequently filed an answer, including a demand for a jury trial. Id. at 764. Later, the claimant filed an amended counterclaim that included a jury demand; however, the plaintiff filed a motion to strike that jury demand and, in addition, the other claimant withdrew his demand for a jury trial. Id. at 764-65. The supreme court determined that the trial court did not err in striking the claimant’s jury demand or allowing the other claimant to withdraw his jury demand without the claimant’s consent, see Rule 38, Ala. R. Civ. P., because, at the time the claimant had filed his original answer and counterclaim, the other claimant had not yet made a jury demand and, thus, the claimant could not have relied on the other claimant’s demand for a jury. Id. at 765.

Moya also cites Ex 'parte West, supra, in an attempt to emphasize the importance of the fact that, in the present case, Nationwide’s jury demand was made before Moya filed his answer. West does not support Moya’s argument, however, because in that case, like in Staik, the jury demand relied upon was made subsequent to the original answer and, thus, could not support a later jury demand by the defendant that had filed the original answer. 797 So.2d at 1072. Moya is correct that Nationwide’s jury demand preceded the filing of Moya’s counterclaim and that, thus, based upon the timing of the parties’ pleadings, Moya could have relied on that jury demand in accordance with Rule 38.

In Hester v. Posey, 684 So.2d at 1348-49, however, also relied upon by Moya, this court stated:

“We find the following pertinent statements in 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2318 (1971):
“ ‘If a timely and proper demand for a jury is made by one party, all of the parties to the action who are interested in the issues for which jury trial has been demanded may rely on that démand and need not make an additional demand of their own....
“ ‘If a proper demand for a jury has been made, it cannot be withdrawn without the consent of all the parties. The demand by one party is enough to make the case a jury action....
“ ‘A party who is in default has not standing to demand a jury trial. However if a jury trial has once been properly demanded defendant, despite his subsequent default, may still insist on a jury trial on the issue of damages.’
“As noted above, Wal-Mart, Mang-rum, and Buchanan' demanded a jury trial when each filed answers to the complaint. We find that although Hester did not demand a jury trial, he could rely upon the demands for a jury trial made by his co-defendants for the following reasons: those demands for a jury trial were made prior to the time Hester filed his answer, the demands for a jury trial were never withdrawn, and Hester never consented to any alleged withdrawal of the demands for a jury trial. See Staik v. Jefferson Fed. Sav. & Loan Ass’n, 434 So.2d 763 (Ala.1983). As our supreme court stated in Staik, 434 So.2d at 765, ‘[a party] can rely on the demand made ... and know that he cannot be ambushed by the withdrawal of that jury demand without his consent.’ ”

(Emphasis added.)

It is clear from the language cited and adopted in Hester, including the language we have emphasized in the quote above, that the rule asserted by the Canterburys applies in Alabama. Moya argues in his reply brief to this court that, even if the rule as stated in Rosen were applicable here, because the claims against Moya and the claims against Nationwide arise from the same facts and Nationwide’s liability depends on the resolution of the negligence claim against Moya, all the claims in the Canterburys’ complaint were covered by Nationwide’s jury demand. As stated in Hester, however, “ ‘all of the parties to the action who are interested in the issues for which jury trial has been demanded may rely’ ” on the previous jury demand. 684 So.2d at 1349 (emphasis added). In the present case, Moya does not argue that he had any interest in the outcome of the uninsured/underinsured-motorist claims against Nationwide, only that Nationwide’s liability was dependent on the resolution of the Canterburys’ claims against him. Based on Hester, because Moya had no interest in the issue raised against Nationwide, Moya was not able to rely on Nationwide’s jury demand, and, thus, the trial court did not err in declining to afford Moya a jury trial.

AFFIRMED.

THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ., concur.


author: WELCH, Judge.

text:
    Hugh Bradley ADAMS v. STATE of Alabama.
    CR-11-0427.
    Court of Criminal Appeals of Alabama.
    March 29, 2013.

      . Katherine Patterson Luker, Birmingham, for appellant.
    Luther Strange, atty. gen., and Ferris Stephens, asst. atty. gen., for appellee.
   On Rehearing Ex Mero Motu

WELCH, Judge.

This Court’s opinion of September 28, 2012, is withdrawn and the following substituted therefor.

Hugh Bradley Adams appeals from his convictions for unlawful possession of the controlled substance methamphetamine, a violation of § 13A-12-212(a)(l), Ala.Code 1975; first-degree unlawful manufacturing of methamphetamine, a violation of § 13A-12-218; and unlawful possession of drug paraphernalia, a misdemeanor proscribed by § 13A-12-260, Ala.Code 1975. Adams was sentenced as a habitual felony offender to 15 years’ imprisonment for possession of methamphetamine, to life imprisonment without the possibility of parole for manufacturing methamphetamine, and to 12 months in jail, which sentence was suspended, for possession of drug paraphernalia.

Adams presents two issues on appeal. Because Adams does not challenge the sufficiency of the evidence, it is unnecessary to set forth a complete explanation of the facts that underlie his conviction. Adams was arrested for the instant charges as a consequence of officers’ executing a misdemeanor arrest warrant for Adams at Adams’s residence. As a result of searching Adams incident to his arrest, officers found a syringe and what they believed to be methamphetamine in Adams’s pocket. A search of other individuals at the scene disclosed' another small bag of what appeared to be methamphetamine and a receipt, with a date from the night before, for the purchase of cold medicine. The officers knew that cold medicine was used in manufacturing methamphetamine. Officers could smell the chemical odor associated with methamphetamine coming from Adams’s garage. A search warrant was obtained. Numerous items associated with the manufacture of methamphetamine were discovered as a result of the search.

Adams contends on appeal that the trial court erred when it denied Adams’s motion to dismiss the indictment charging him with the unlawful manufacture of methamphetamine. The indictment charged:

“The grand jury of said county charge that, before the finding of this indictment, HUGH BRADLEY ADAMS, alias BRADLEY HUGH ADAMS, whose name is to the grand jury otherwise unknown, did unlawfully manufacture a controlled substance or possess one or more precursor substances with the intent to manufacture a controlled substance, to-wit: Methamphetamine, and in conjunction therewith, the following conditions occurred: a clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school, in violation of Section 13A-12-218 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.”

(C. 90.)

Before trial began on August 22, 2012, Adams timely moved to dismiss this indictment, arguing that the indictment did not properly charge the unlawful manufacture of methamphetamine in the first degree because, according to Adams, it did not allege that at least two of the “conditions” listed in § 13A-12-218(a), Ala.Code 1975, existed in conjunction with a violation of § 13A-12-217, Ala.Code 1975, which defines the offense of unlawful manufacture of methamphetamine in the second degree. “[A] defendant must object to the failure of the indictment to state a charge ‘during the pendency of the proceeding.’ ” Ex parte Harper, 594 So.2d 1181, 1193 (Ala.1991) (indictment was not void for failing to allege that distribution of controlled substance offense was committed knowingly).

Rule 15.2(d), Ala. R.Crim. P., provides:

“(d) Objections Which May Be Raised at Any Time. The lack of subject matter jurisdiction or the failure of the charge to state an offense may be raised by the court or by motion of the defendant at any time during the pendency of the proceeding. Once such an issue is raised by the court, the procedure thereafter shall be the same as if the defendant had raised the issue by appropriate motion.”

Methamphetamine is a Schedule II controlled substance.

A charge of first-degree unlawful manufacture of methamphetamine includes charging the elements necessary to charge second-degree unlawful manufacture of methamphetamine and at least two of the “conditions” found in § 13A-12-218(a). Section 13A-12-217 defines second-degree unlawful manufacturing of a controlled substance as follows:

“(a) A person commits the crime of unlawful manufacture of a controlled substance in the second degree if, except as otherwise authorized in state or federal law, he or she does any of the following:
“(1) Manufactures a controlled substance enumerated in Schedules I to V, inclusive.
“(2) Possesses precursor substances as determined in Section 20-2-181, in any amount with the intent to unlawfully manufacture a controlled substance.
“(b) Unlawful manufacture of a controlled substance in the second degree is a Class B felony.”

Section 20-2-2(13), Ala.Code 1975, defines “manufacture” as:

“The production, preparation, propagation, compounding, conversion, or processing of a controlled substance either directly or indirectly, by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container; except [exclusions not applicable here].”

The “conditions” necessary to elevate second-degree unlawful manufacture of a controlled substance to first-degree unlawful manufacture of a controlled substance are set forth in § 13A-12-218(a), which defines first-degree unlawful manufacture of a controlled substance:

“(a) A person commits the crime of unlawful manufacture of a controlled substance in the first degree if he or she violates Section 13A-12-217 and two or more of the following conditions occurred in conjunction with that violation:
“(1) Possession of a firearm.
“(2) Use of a booby trap.
“(3) Illegal possession, transportation, or disposal of hazardous or dangerous materials or while transporting or causing to be transported materials in furtherance of a clandestine laboratory operation, there was created a substantial risk to human health or safety or a danger to the environment.
“(4) A clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school.
“(5) A clandestine laboratory operation actually produced any amount of a specified controlled substance.
“(6) A clandestine laboratory operation was for the production of controlled substances listed in Schedule I or Schedule II.
“(7) A person under the age of 17 was present during the manufacturing process.
“(b) Unlawful manufacture of a controlled substance in the first degree is a Class A felony.”

(Emphasis added.)

Section 13A-l-2(3), Ala.Code 1975, defines a clandestine laboratory operation as any of the following:

“a. Purchase or procurement of chemicals, supplies, equipment, or laboratory location for the unlawful manufacture of controlled substances.
“b. Transportation or arranging for the transportation of chemicals, supplies, or equipment for the unlawful manufacture of controlled substances.
“c. Setting up of equipment or supplies in preparation for the unlawful manufacture of controlled substances.
“d. Distribution or disposal of chemicals, equipment, supplies, or products used in or produced by the unlawful manufacture of controlled substances.”

Adams argued before his trial and on appeal that his indictment alleged only-condition number (4) of § 13A-12-218(a)— “[a] clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school” — had occurred in conjunction with § 13A-12-217. Therefore, Adams argued, his indictment did not charge first-degree unlawful manufacturing of methamphetamine.

The State responded at trial and on appeal by asserting that “while the indictment is not drafted perfectly ... it is sufficient ... to give [Adams] notice of what he’s being charged with” in compliance with § 15-8-25, Ala.Code 1975. (R. 20.) Section 15-8-25 states:

“An indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment. In no case are the words ‘force of arms’ or ‘contrary to the form of the statute’ necessary.”

According to the State, two conditions were set forth in the indictment. The State asserts that one condition, number (4) of § 13A-12-218(a), was clearly set forth after the indictment’s second colon— “[a] clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school.” According to the State, before its first colon, the indictment charged a second condition, i.e., that Adams “did unlawfully manufacture a controlled substance or possess one or more precursor substances, to-wit: Methamphetamine.” The State contends that “did unlawfully manufacture a controlled substance or possess one or more precursor substances, to-wit: Methamphetamine,” means the same thing as and prohibits the same conduct as condition number (6)— “[a] clandestine laboratory operation was for the production of controlled substances listed in Schedule I or Schedule II.” Therefore, according to the State, the failure of the indictment to specifically and separately set forth condition (6) of § 13A-12-218(a) was not fatal to the charge of first-degree unlawful manufacture of methamphetamine.

The State specifically argued:

“That, coupled with the fact that we did put him on notice, also of the fact of the clandestine laboratory taking place within five hundred feet of a residence, I think a fair reading of the entire indictment, not just solely looking at the section after the colon, fairly puts him on notice.
“While it’s not perfectly drafted, I believe it’s sufficiently drafted to give him notice that he’s being charged with manufacturing in the first degree.”

(R. 21.)

“A defendant is constitutionally entitled to be informed of the nature and the cause of the accusation against him. U.S. Const, amend. VI; Ala. Const, art. I, § 6. The function of the indictment is to inform the accused of the crime with which he is charged, so that he may prepare a defense if one is available, Ex Parte Hightower, 443 So.2d 1272 (Ala.1983); City of Montgomery v. Collins, 355 So.2d 1111 (Ala.1978). The person accused of a crime is required at trial to answer only the specific charge contained in the indictment. Geeter v. State, 35 Ala.App. 207, 45 So.2d 167 (1950).”

Ex parte Washington, 448 So.2d 404, 407 (Ala.1984).

“ ‘ “ ‘An indictment that fails to allege each material element of an offense fails to charge that offense.’ ” ’ Ex parte Lewis, 811 So.2d 485, 488 (Ala.2001), overruled on other grounds, Ex parte Seymour, 946 So.2d 536 (Ala.2006), quoting Barbee v. State, 417 So.2d 611, 613 (Ala.Crim.App.1982), quoting in turn, United States v. London, 550 F.2d 206, 211 (5th Cir.1977).” A.L.L. v. State, 42 So.3d 138, 140 (Ala.Crim.App.2008), reversed on other grounds, 42 So.3d 146 (Ala.2009).

“1 “ ‘If the indictment is framed under a statute which defines the offense created, and prescribes its constituents, it must allege in the words of the statute, or other words equivalent in meaning, all the statutory elements which are essentially descriptive of the offense.’ ” Barbee v. State, 417 So.2d 611, 612-13 (Ala.Cr.); Tinsley v. State, 485 So.2d 1249, 1251 (Ala.Cr.App.1986)....
“ ‘ . An indictment must contain the elements of the offense charged, and also sufficiently apprise the appellant of what he must be prepared to meet.” Hardy v. State, 409 So.2d 996, 1001 (Ala.Cr.App.1982).
“ ‘See Edwards v. State, 379 So.2d 336, 338 (Ala.Cr.App.1979), cert. denied, Ex parte Edwards, 379 So.2d 339 (Ala.1980).’
“Felder v. State, 512 So.2d 817, 818 (Ala.Crim.App.1987).”

Hemrick v. State, 922 So.2d 967, 968-69 (Ala.Crim.App.2005) (emphasis added).

The indictment in this case did not charge first-degree unlawful manufacturing of methamphetamine because it did not charge all the elements of that offense. The language “did unlawfully manufacture a controlled substance or possess one or more precursor substances, to-wit: Methamphetamine,” charges second-degree manufacturing of methamphetamine. See § 13A-12-217.

Although an offender may “unlawfully manufacture a controlled substance” as expressed in § 13A-12-217 by use of a lab for the production, conversion, or processing of the controlled substance, he may also “unlawfully manufacture a controlled substance” by preparation, propagation, or compounding it, or by engaging in any packaging or repackaging of the substance or labeling or relabeling of its container. See Section 20-2-2(13), Ala.Code 1975. In short, the first three actions described in the definition of “manufacture” may involve use of a laboratory; however, seven of the actions that could be performed to “manufacture a controlled substance” do not require the use of a laboratory.

An offender could also “manufacture” a controlled substance in a way that is not “clandestine,” as that term is defined above. The indictment, as written, could also be read to contemplate that merely placing a label on a package of methamphetamine was manufacturing a controlled substance, and that action would not establish the missing sixth factor.

Thus, Adams was not given fair notice that he was being charged with conducting “[a] clandestine laboratory operation [which] was for the production of controlled substances listed in Schedule I or Schedule II.”

Moreover, the legislature specifically required proof of at least two additional elements listed in § 13A-12-218 to elevate second-degree unlawful manufacturing of methamphetamine to first-degree unlawful manufacturing of methamphetamine. The legislative requirement in § 13A-12-218(a) that an offender must violate § 13A-12-217 “and two or more of the following conditions [must have] occurred in conjunction with that violation,” would be grammatically nonsensical and illogical if the two “conditions” occurring in conjunction with § 13A-12-217 could be satisfied by the necessary elements from § 13A-12-217 itself, as urged by the State.

The evidence presented at trial to prove unlawful manufacturing of methamphetamine charged under § 13A-12-217 and to prove that a clandestine laboratory operation existed to produce methamphetamine charged under § 13A-12-218 may overlap, but a defendant is entitled to be informed in the indictment as to which conditions of § 13A-12-218 he or she must defend. Ex parte Washington, supra.

The trial court erred when it denied Adams’s timely motion to dismiss the indictment charging him with first-degree unlawful manufacture of methamphetamine. The trial court’s judgment in this regard is due to be reversed.

Reversal as to this issue pretermits review of Adams’s remaining claims, which further challenge the indictment charging the manufacture of methamphetamine and challenge the trial court’s jury instruction on manufacturing methamphetamine.

The judgment of the circuit court as to the unlawful-manufacture-of-a-controlled-substance charge is reversed, and this case is remanded for proceedings consistent with this opinion.

Although Adams appealed his unlawful-possession-of-methamphetamine and unlawful-possession-of-drug paraphernalia convictions, he presented no appellate challenge to those convictions. Therefore, those convictions are affirmed.

ON REHEARING EX MERO MOTU: OPINION OF SEPTEMBER 28, 2012 WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Moreover, a charge of second-degree unlawful manufacture of a controlled substance based on possession of a precursor chemical clearly requires the existence of at least two conditions listed in § 13A-12-218(a) to elevate the crime to first-degree unlawful manufacture of a controlled substance.

      . Although the indictment charged second-degree manufacturing of methamphetamine and the State presented sufficient evidence to support a conviction for second-degree manufacturing of methamphetamine, the circuit court did not instruct the jury on this lesser-included offense. Therefore, we cannot remand this cause to the circuit court for it to enter a judgment finding Adams guilty of the lesser-included offense of second-degree manufacture of methamphetamine. See Brarid v. State, 960 So.2d 748 (Ala.Crim.App.2006) (conviction reversed and a judgment entered on a lesser-included offense); McMillian v. State, 58 So.3d 849 (Ala.Crim.App.2010) (conviction reversed and judgment entered on a lesser-included offense); Reck v. State, 84 So.3d 151 (Ala.Crim.App.2010) (conviction reversed and judgment entered on a lesser-included offense), reversed on other grounds, 84 So.3d 155 (Ala.2011).


author: PER CURIAM. PARIENTE, J.,

text:
    Gabriel A. HERNANDEZ, Petitioner, v. STATE of Florida, Respondent. State of Florida, Petitioner, v. Gabriel A. Hernandez, Respondent.
    Nos. SC11-941, SC11-1357.
    Supreme Court of Florida.
    Nov. 21, 2012.
    Rehearing Denied April 16, 2013.

      Sui Chung, Immigration Law & Litigation Group, Miami, FL and Michael S. Vastine, St. Thomas University School of Law, Director Immigration Clinic, Assistant Professor of Law, Miami Gardens, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; and Richard L. Polin, Chief Assistant Attorney General and Timothy Rhys Morgan Thomas, Assistant Attorney General, Miami, FL; and Kristen Lynn Davenport and Wesley Harold Heidt, Assistant Attorneys General, Daytona Beach, FL, for Respondent.

      Rebecca A. Sharpless, University of Miami School of Law, Immigration Clinic, Coral Gables, FL and Lana Chiariello, Americans for Immigrant Justice, Miami, FL, for Amicus Curiae, Lawyers Association American Immigration.
    Beatriz A. Llórente, President, Miami Chapter of Florida Association of Criminal Defense Lawyers, Miami, FL; and Sonya Rudenstine, Gainesville, FL; and Michael Robert Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, FL, for Amicus Curiae Florida Association of Criminal Defense Lawyers.
   PER CURIAM.

This case is before the Court for review of the decision of the Third District Court of Appeal in Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011). In its decision, the Third District ruled upon the following questions, which it certified to be of great public importance:

1. DOES THE IMMIGRATION WARNING IN FLORIDA RULE OF CRIMINAL PROCEDURE 3.172(c)(8) BAR IMMIGRATION-BASED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS BASED ON THE U.S. SUPREME COURT’S DECISION IN PADILLA v. KENTUCKY [559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ]?
2. IF THE PRECEDING QUESTION IS ANSWERED IN THE NEGATIVE, SHOULD THE RULING IN PADILLA BE APPLIED RETROACTIVELY?

Hernandez, 61 So.3d at 1145-46.

We answer the certified questions in the negative. We hold that, under Padilla, the trial court’s warning to a defendant that “the plea may subject him or her to deportation,” as required by Florida Rule of Criminal Procedure 3.172(c)(8), does not preclude a finding of ineffective assistance of counsel. However, we also hold that the United States Supreme Court’s holding in Padilla does not apply retroactively. Therefore, we approve the Third District’s decision upholding the denial of Hernandez’s postconviction motion.

I. BACKGROUND

The facts in this case were set forth in the Third District’s decision below:

In April 2001, Hernandez (then 19 years old and a permanent resident alien cardholder) was arrested for the sale of lysergic acid diethylamide (LSD) to a confidential informant. Hernandez was born in Nicaragua, but entered the United States with his mother when he was under two years of age. On May 3, 2001, Hernandez was charged by information with a violation of section 893.13(l)(a)l, Florida Statutes (2001), sale of a controlled substance, a second degree felony. The same day, an Assistant Public Defender was appointed to represent him, he was arraigned, and he entered a plea of guilty to the charge. From appointment of counsel to entry of the plea, about ten minutes elapsed. The plea was for one year of probation (with a possibility of termination after six months), completion of a substance abuse assessment and any recommended treatment, and the payment of $451.00 in costs. The maximum sentence of fifteen years in state prison was described to Hernandez by his attorney before he agreed to the plea.
The plea colloquy included Hernandez’s affirmative response (in the presence of his appointed counsel) to the trial court’s question: “Do you understand that if you are not an American citizen, the U.S. Government could use these charges against you in deportation proceedings?” Hernandez also acknowledged as part of the colloquy that he was able to speak, read, and write English. As part of his motion and- as a proffer of his (now former) Assistant Public Defender’s recollection of the immigration-related aspects of Hernandez’s plea, Hernandez attached emails regarding the former Assistant’s responses to a series of questions. The former Assistant acknowledged that he had no specific recollection of the case, as he had handled “thousands” of them while a Public Defender, but he reported that he confined his immigration-related advice to his clients to the fact “that a plea could/may affect their immigration status.” He did say that he “definitely did not discuss the immigration consequences with any outside immigration counsel and did not refer Hernandez to an immigration specialist.”
Evidence also was proffered to show that after this incident Hernandez had gone on to attain a number of achievements — a Bachelor of Arts Degree in 2005, and gainful employment as a computer network administrator for a Miami bank group. But unbeknownst to Hernandez in 2001, and apparently to his Assistant Public Defender as well, his plea and conviction was and is classified as an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B), mandating his deportation under 8 U.S.C. § 1227(a)(2)(A)(iii), and (B)(i). The plea and conviction also bar Hernandez’s eligibility for discretionary relief from deportability under 8 U.S.C. §§ 1182(h) or 1229b(a)(3).

Hernandez v. State, 61 So.3d at 1146-47 (footnote omitted).

On March 31, 2010 (nine years after Hernandez entered his plea), the United States Supreme Court in Padilla, 130 S.Ct. at 1478, held that defense counsel was deficient for failing to advise his client of mandatory deportation consequences for pleading guilty. Padilla, a long-time, permanent resident of the United States, pled guilty to drug-transportation charges' after receiving advice from defense counsel “that [Padilla] ‘did not have to worry about immigration status since he had been in the country so long.’ ” Id. at 1478 (quoting Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky.2008)). However, after discovering that the plea “made his deportation virtually mandatory” under the Immigration and Nationality Act, Padilla filed a postconviction motion alleging ineffective assistance of counsel. Id. at 1478. The Supreme Court noted that Padilla’s was “not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.” Id. at 1483.

Although Padilla’s counsel had supplied incorrect advice, the United States Supreme Court specifically rejected the suggestion that it should limit its holding to cases that, like Padilla, involved affirmative misadvice.. Id. at 1484. Instead, it ruled that defense counsel must, at a minimum, “inform her client whether his plea carries a risk of deportation.” Id. at 1486. Furthermore, the United States Supreme Court specified that, depending on the clarity and certainty of the deportation consequence, defense counsel’s duty to advise under Padilla may be heightened:

Immigration law can be complex, and it is a legal specialty of its ■ own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward ... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

Id. at 1483 (footnote omitted).

Following the United States Supreme Court’s decision in Padilla, Hernandez filed a posteonviction motion alleging that his counsel failed to advise him that deportation was mandatory for the offense to which he pled nine years earlier and that he would not have pled guilty if he had known that it “would mandate [his] deportation without recourse.” Hernandez, 61 So.3d at 1147. The circuit court, relying on the Fourth District’s decision in Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010), summarily denied Hernandez’s motion on the basis that the immigration consequences warning included in the plea colloquy pursuant to rule 3.172(c)(8) precluded Hernandez from establishing the requisite prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). .See id.

On appeal, the Third District affirmed the denial of Hernandez’s posteonviction motion on the separate basis that, in its view, Padilla does not apply retroactively. Id. at 1151. Additionally, the Third District expressed disagreement with the Fourth District’s reasoning in Flores that the warning given by the trial court precludes any finding of prejudice resulting from counsel’s deficiency. See id. at 1147. The Third District instead stated that, “[u]nder our reading of Padilla, constitutionally effective defense counsel is required ... to furnish a ‘will subject you,’ not a ‘may subject you’ warning to his or her client” where the deportation consequences of a plea are truly clear as a matter of law. Id. at 1148 (emphases added). Finally, the Third District certified the questions described earlier concerning rule 8.172(c)(8) deportation warnings and the retroactivity of Padilla.

II. ANALYSIS

A.

The United State Supreme Court’s decision in Strickland, 466 U.S. at 687, 104 S.Ct. 2052, outlines two requirements for establishing an ineffective assistance of counsel claim:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

In the plea context, a defendant satisfies the prejudice requirement only where he can demonstrate “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). “[A] petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 130 S.Ct. at 1485 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)).

In this case, assuming the truth of Hernandez’s allegations (as the United States Supreme Court assumed the truth of Padilla’s allegations), Hernandez’s counsel was deficient under Padilla for failing to advise Hernandez that his plea subjected him to presumptively mandatory deportation. See Padilla, 130 S.Ct. at 1483. Hernandez, like Padilla, pled to a controlled substance offense, making him de-portable, 8 U.S.C. § 1227(a)(2)(B)(i), and an aggravated felon, 8 U.S.C. § 1101(a)(43)(B). See Hernandez, 61 So.3d at 1146-47. As the United States Supreme Court in Padilla, 130 S.Ct. at 1483, observed, these statutory terms “are succinct, clear, and explicit in defining the removal consequence for [a controlled substance] conviction.” Hernandez’s counsel, like “Padilla’s counsel[,] could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses.” Padilla, 130 S.Ct. at 1483. Yet Hernandez proffered evidence that defense counsel merely advised Hernandez “that a plea could/may affect [Hernandez’s] immigration status.” Hernandez, 61 So.3d at 1146. Given that the deportation consequence was “truly clear,” Hernandez’s counsel had a commensurate duty to provide the “correct advice.” Padilla, 130 S.Ct. at 1483.

Although defense counsel was deficient for failing to warn Hernandez of the clear immigration consequences of his plea, the State contends that any resulting prejudice was cured. Specifically, the State argues that the deportation warning required by rule 3.172(c)(8) provides notice to a defendant of deportation consequences prior to entry of his plea, such that the defendant cannot later argue he was prejudiced by his counsel’s failure to warn. Hernandez responds that, given counsel’s heightened duty in certain “truly clear” circumstances, the “may subject you” warning in rule 3.172(c)(8) is insufficient to categorically remediate prejudice resulting from defense counsel’s deficiency. We agree with. Hernandez and hold that, under Padilla, the equivocal warning pursuant to rule 3.172(c)(8) does not bar ineffective assistance of counsel claims in every instance.

Here, it is undisputed that “[t]he plea colloquy included Hernandez’s affirmative response (in the presence of his appointed counsel) to the trial court’s question: ‘Do you understand that if you are not an American citizen, the U.S. Government could use these charges against you in deportation proceedings?”’ Hernandez, 61 So.3d at 1146. However, because Padilla requires from counsel more than this type of equivocal warning, the trial court’s warning could not have sufficiently removed the prejudice, if any, in this case. Where deportation consequences are “truly clear,” the United States Supreme Court in Padilla requires effective counsel to provide more than equivocal advice concerning those consequences. Padilla, 130 S.Ct. at 1483. At least in those circumstances, an equivocal warning from the trial court is less than what is required from counsel and therefore cannot, by itself, remove prejudice resulting from counsel’s deficiency.

The fact that an equivocal warning from the trial court is insufficient to categorically eliminate prejudice in every circumstance is not to say, however, that the plea colloquy is meaningless, as the Fourth District in Flores reasoned. See Flores, 57 So.3d at 220. Instead, a colloquy containing an equivocal warning from the trial court and an acknowledgment from the defendant contributes to the totality of the circumstances by providing evidence that the defendant is aware of the possibility that a plea could affect his immigration status. In other words, the colloquy required by rule 3.172(c)(8) may refute a defendant’s postconviction claim that he had no knowledge that a plea could have possible immigration consequences; however, it cannot by itself refute a claim that he was unaware of presumptively mandatory consequences.

B.

We agree with the Third District that Padilla does not apply retroactively. See Hernandez, 61 So.3d at 1151.

Under Witt v. State, 387 So.2d 922 (Fla.1980), “a new rule of law will not apply retroactively unless the new rule ‘(a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.’ ” Chandler v. Crosby, 916 So.2d 728, 729 (Fla.2005) (quoting Witt, 387 So.2d at 931). This Court has, applying Witt, “rarely f[ound] a change in decisional law to require retroactive application.” Hughes v. State, 901 So.2d 837, 846 (Fla.2005) (quoting Mitchell v. Moore, 786 So.2d 521, 529 (2001)). Because, in this case, Padilla clearly meets the first two requirements, the analysis turns on whether Padilla “constitutes a development of fundamental significance.” Witt, 387 So.2d at 931; see Johnson v. State, 904 So.2d 400, 409 (Fla.2005); Hughes, 901 So.2d at 840.

“[A] decision is of fundamental significance when it either places ‘beyond the authority of the state the power to regulate certain conduct or impose certain penalties’ or when the rule is ‘of sufficient magnitude to necessitate retroactive application[.]’ ” Chandler, 916 So.2d at 729 (quoting Witt, 387 So.2d at 929). Padilla, like other Sixth Amendment cases addressed by this Court under Witt, clearly “does not fall within the first category because it does not prohibit the government from criminalizing certain conduct or imposing certain penalties.” Johnson, 904 So.2d at 409. Therefore, this Court must determine whether the rule announced in Padilla is “of sufficient magnitude to necessitate retroactive application” after assessing three factors: “(a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule.” Witt, 387 So.2d at 926, 929.

The first factor weighs against a finding that Padilla is retroactively applicable. Padilla’s purpose is to ensure “accurate legal advice for noncitizens accused of crimes,” and to bring “informed consideration of possible deportation” into the plea-bargaining process. Padilla, 130 S.Ct. at 1480, 1486. Yet Padilla focuses solely on the duty of defense counsel and, according to the United States Supreme Court, merely encapsulates existing professional norms within the established framework of the Sixth Amendment right to effective assistance of counsel. See Padilla, 130 S.Ct. at 1485. Padilla neither “alter[s] the range of conduct or class of persons that the law punishes,” Johnson, 904 So.2d at 409, nor “affect[s] the determination of guilt or innocence,” Hughes, 901 So.2d at 841. Additionally, in Florida, Padilla does not exist as the only mechanism by which a noncitizen is informed of potential immigration consequences to entering a plea. Although rule 3.172(c)(8) is unable to completely eliminate prejudice from counsel’s deficiency in every instance, the rule has, since its adoption in 1988, at least ensured that those convicted and ready to admit to commission of a crime receive some notification that deportation is possible. This Court has further provided to noncitizen defendants a mechanism for vacating their plea if the trial court does not advise the defendant correctly under rule 3.172(c)(8). See State v. Green, 944 So.2d 208 (Fla.2006). The fact that this warning has existed within the plea process effectively limits Padilla to its pronouncement of a heightened duty for defense counsel in certain situations.

Witt’s second factor also weighs against retroactive application of Padilla. This Court had, since 1987, effectively relieved attorneys of the constitutional responsibility to advise their clients of the potential consequence of deportation. See State v. Ginebra, 511 So.2d 960 (Fla.1987). Additionally, postconviction courts have relied on the old rule in addressing ineffective assistance of counsel claims. See Barrios-Cruz, 63 So.3d at 872-73; Hernandez, 61 So.3d at 1150-51. Moreover, our reliance on the old rule “has been entirely in good faith.” Johnson, 904 So.2d at 410. Prior to Padilla, the United States Supreme Court had not required defense counsel to advise clients concerning collateral matters, and at least nine United States Courts of Appeals and thirty states had affirmatively held that counsel was not required to provide such advice. See Chaidez v. United States, 655 F.3d 684, 690-91 (7th Cir.2011).

Finally, Witt’s third factor weighs against retroactive application because retroactive application of Padilla would have an adverse impact on the administrative of justice. As the Third District in Hernandez observed,

[t]he insufficiency of the previously-sufficient deportation warning during thousands of past plea colloquies for nonciti-zens would pave the way for motions to vacate those pleas and convictions. Evi-dentiary hearings would follow. The concern expressed in another immigration warning case, that for any such case in which a plea is set aside, “the passage of time between the guilty plea and the postconviction motion puts the State at a great disadvantage in seeking to try the case to conviction,” State v. Green, 944 So.2d 208, 216 (Fla.2006), applies with equal force here.

Hernandez, 61 So.3d at 1151. Indeed, many of the cases could involve overturned convictions, stale records, lost evidence, and unavailable witnesses. Chandler, 916 So.2d at 730-31.

Accordingly, because all three Witt factors weigh against retroactive application, we hold that the rule announced in Padilla does not apply retroactively.

III. CONCLUSION

For the foregoing reasons, we hold that rule 3.172(c)(8) does not, in every instance, cure prejudice resulting from defense counsel’s failure to advise of deportation consequences as required by Padilla. However, we also hold that Padilla does not apply retroactively. We therefore answer both certified questions in the nega-five and approve of the Third District’s decision below.

It is so ordered.

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

PARIENTE, J., concurs with an opinion, in which QUINCE, J., concurs.

PARIENTE, J.,

concurring.

I agree with the majority that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively and therefore does not apply to this case. For the reasons more fully explained in my concurrence in Castano v. State, 119 So.3d 1208 (Fla.2012), Padilla applies to those cases in which, at the time Padilla was decided, the initial postconviction proceeding was not yet final and the defendant had raised a claim of ineffective assistance of counsel for failing to advise of the deportation consequences of a plea. Here, however, Hernandez waited nine years after his 2001 plea to bring a claim of ineffective assistance of counsel for failure to advise of deportation consequences by filing a postconviction motion after Padilla was decided.

QUINCE, J., concurs.

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. And given that the certified questions involve legal determinations based on undisputed facts, we employ a de novo standard of review. See Coicou v. State, 39 So.3d 237, 240 (Fla.2010).

      . Both the Kentucky Supreme Court and the United States Supreme Court assumed the truth of Padilla’s allegations. See Padilla, 130 S.Ct. at 1478, 1486-87.

      . Florida Rule of Criminal Procedure 3.172(c)(8) requires that a trial court, before accepting a plea of guilty or nolo contendere, issue standard warnings to defendants to ensure the voluntariness of their plea:
      (c) Determination of Voluntariness. Except when a defendant is not present for a plea ... the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:

      (8) that if he or she pleads guilty or nolo contendere, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases....
      Rule 3.172(c)(8) was identical in substance at the time Hernandez pled guilty, and it has remained substantively unaltered since it original adoption in 1988. See In re Amendments to Fla. R. Crim. P., 536 So.2d 992 (Fla.1988).

      . The Fifth District has reached the same conclusion. See Santiago v. State, 65 So.3d 575, 576 (Fla. 5th DCA 2011) ("[T]he trial court's warning to Santiago that he may be deported as a result of his plea cured any prejudice that might have flowed from counsel’s misadvice (assuming any misadvice was given).”).

      . Florida, like many other jurisdictions, once classified deportation consequences as “collateral” and held that defense counsel had no constitutional duty to advise defendants as to the potential deportation consequences to entering a plea. See State v. Ginebra, 511 So.2d 960, 962 (Fla.1987) ("We therefore hold that counsel’s failure to advise his client of the collateral consequence of deportation does not constitute ineffective assistance of counsel.”). In light of the United States Supreme Court's decision in Padilla, however, we recede from our holding in Ginebra.

      . The Second, Fourth, and Fifth Districts have also held that Padilla should not be applied retroactively. See Rodriguez v. State, 75 So.3d 391 (Fla. 4th DCA 2011); State v. Shaikh, 65 So.3d 539 (Fla. 5th DCA 2011); Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011).


author: PER CURIAM.

text:
    Leduan DIAZ, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-1281.
    Supreme Court of Florida.
    Nov. 21, 2012.
    Rehearing Denied April 16, 2013.

      Magaly Arias of Polo, Goldstein & Miranda, LLP, Miami, FL; and Benjamin S. Waxman of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Kristen Lynn Davenport, Wesley Harold Heidt, Assistant Attorneys General, Daytona Beach, FL, Richard L. Polin and Timothy Rhys Morgan Thomas, Assistant Attorneys General, Miami, FL, for Respondent.
   PER CURIAM.

In Diaz v. State, 65 So.3d 1079, 1080 (Fla. 3d DCA 2011), the Third District Court of Appeal affirmed the denial of Leduan Diaz’s postconviction motion, which claimed “ineffective assistance of counsel due to trial counsel’s failure to advise him that accepting a plea would subject him to deportation.” We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981). Consistent with our ruling in Hernandez v. State, 124 So.3d 757 (Fla.2012), we approve the Third District’s decision.

It is so ordered.

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