author: JOINER, Judge.

text:
    Keyon Perez WARD v. STATE of Alabama.
    CR-10-1137.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2012.
    Billy Shaun McGhee, Dothan, for appellant.
    Luther Strange, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   On Application for Rehearing

JOINER, Judge.

This Court’s opinion released on May 25, 2012, is withdrawn, and the following is substituted therefor.

Keyon Perez Ward was convicted, following a jury trial, of first-degree robbery. See § 13A-8-41, Ala.Code 1975. Before trial, Ward filed an application for youthful-offender status, which was denied on April 14, 2010. On April 13, 2011, Ward was sentenced to 22 years’ imprisonment and was ordered to pay a $1,000 fine, court costs, attorney fees, and $250 to the Alabama Crime Victims Compensation Fund. Ward was also ordered to pay $3,319 in restitution. On May 2, 2011, Ward filed a timely notice of appeal.

The evidence at Ward’s trial tended to show the following. Janice Fernandez, an employee of a BP gas station in Houston County, testified that at 4:50 a.m. on the morning of August 10, 2009, while she was walking to her job, she heard someone yell at her and she then saw two men running toward her; Fernandez testified that one of the two men was carrying a sawed-off shotgun and that the other man was wearing a striped shirt. Fernandez stated that the man wearing the striped shirt threw her to the ground while the other man hit her in the head with the shotgun and kicked her. Fernandez said that the man wearing the striped shirt grabbed her by the arm, pulled her off the ground, and told her to unlock the door and to turn off the alarm; Fernandez testified that she noticed that the man wearing the striped shirt was also wearing black tennis shoes and jeans with a patchwork design. Fernandez testified that once they were inside the store, she opened the safe, and the man wearing the striped shirt took money out of the safe.

Sgt. Lynn Watkins, a member of the Dothan Police Department, testified that she and her tracking dog responded to a call concerning a robbery at the BP station. Sgt. Watkins testified that she and the dog tracked through an opening in the fence behind the gas station, where she found a cellular telephone lying against the fence. The cell phone contained a picture of an individual later identified as Raheimi Kinsey. Sgt. Watkins testified that she also noted a footprint at the gas station.

Sgt. Watkins testified that at one point Officer Michael Conner told her that two men who matched the description of the robbers were last seen walking through a nearby trailer park and that she and the dog went to the trailer park. Sgt. Watkins testified that while at the trailer park, she observed footprints with a similar shoe pattern as the print found at the scene, and she tracked the footprints to a white vehicle parked behind lot D-511 in the trailer park. Sgt. Watkins further testified that Ward and another man were found in the trailer parked on that lot.

Jon Thomas, a member of the Dothan Police Department, testified that he recovered from inside the trailer a pair of Nike brand shoes, a striped shirt, and a pair of shorts with a design on the back of the shorts; the striped shirt was later identified as the striped shirt worn by the man in the surveillance video from the gas station. Thomas also stated that he recovered from inside the trailer a box of Winchester brand .410 shotgun shells; a .410 shotgun had been recovered from the white vehicle parked behind lot D-511 in the trailer park. Thomas further testified that he recovered from the white vehicle several .410-shotgun shells and money in plastic bags from the gas station.

Virgil McGee, who lived in the trailer located at lot D-511, testified that around midnight on August 10, 2009, he saw Ward and Raheimi Kinsey outside his residence. McGee stated that Ward and Kinsey thereafter left McGee’s residence with a shotgun. McGee testified that Ward later returned to his house around 5:00 a.m. and asked McGee for a change of clothes.

After Ward was arrested by Officer Conner and transported to the criminal-investigation division of the police department, Ward made two statements to the police. In Ward’s first statement, he denied being involved in the crime, but admitted that he was with Virgil McGee and Raheimi Kinsey on the morning of the robbery. In Ward’s second statement, however, he claimed that at about the time of the robbery, he was approached by an unknown male and was asked to exchange clothes with the unknown male; Ward stated that he received the shorts and the striped shirt from the unknown male.

During trial, Ward moved to suppress the statements he had made to the police. The circuit court conducted a suppression hearing, outside the presence of the jury, at which Officer Keith Cook, the interrogating officer, and Ward testified. Ward, who was 17 years old at the time of his arrest, testified that he was never asked if he wanted to contact his parents before he signed a waiver-of-rights form and made statements to the police. Ward admitted that he knew that he was under arrest for first-degree robbery at the time he was handcuffed and placed in the back of the police car.

After considering the arguments of the attorneys for both sides, the circuit court denied Ward’s motion to suppress. Ultimately, the jury found Ward guilty of first-degree robbery. The circuit court denied Ward’s motion for a new trial, and this appeal followed.

I.

Ward first argues that the circuit court erred in denying his request for youthful-offender status. Specifically, Ward contends that the circuit court, in denying his request, improperly considered charges that occurred after the present robbery charge. The circuit court conducted a hearing to consider Ward’s application for youthful-offender status. At the hearing, the State argued as follows:

“[Prosecutor]: Judge, we are opposed. If you notice the juvenile record, burglaries, that occurred over different periods of time, March, September. Even three days after one, there was another one that was a robbery case. I know you can’t deny it just on the facts. But he had a weapon — you can consider that — a sawed-off shotgun. So based on the juvenile record, we don’t think he’s a good candidate for youthful offender.”

(R. 3.)

“When deciding whether to grant youthful offender status, it is expected that the nature of the crime charged, along with prior convictions of the defendant, will be considered, as well as any other matters deemed relevant by the court. Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975). No prescribed format is required. Edwards v. State, 294 Ala. 358, 317 So.2d 512 (1975). Neither is the trial court required to articulate on the record the reasons for denying youthful offender status to a defendant. Garrett v. State, 440 So.2d 1151 (Ala.Crim.App.1983). In deciding whether or not to accord youthful offender status to an accused person, the discretion of the trial judge is virtually absolute. Morgan v. State, 363 So.2d 1013 (Ala.Crim.App.1978).”

Goolsby v. State, 492 So.2d 635, 636 (Ala.Crim.App.1986).

The record indicates that the circuit court considered Ward’s probation report, as well as the arguments of both the State and Ward’s counsel, before it denied Ward’s request for youthful-offender status. Specifically, in support of its holding, the circuit court stated: “He’s — he doesn’t have a clean record.” (R. 4.) There was a sufficient basis in the record from which the circuit court could deny Ward’s application for youthful-offender status. Accordingly, we conclude that the circuit court did not abuse its discretion in denying Ward’s youthful-offender application. Goolsby, swpra.

II.

Ward next contends that the circuit court erred in denying his motion to suppress the statements he made to law enforcement while he was in custody. Specifically, Ward argues that he was not advised of his juvenile Miranda rights before he made his statements to law enforcement. See Miranda v. Arizona, 384 U.S. 436 (1966); § 12-15-202(a) and (b), Ala.Code 1975. The State argues that Ward was properly informed of his juvenile Miranda rights and that the circuit court therefore properly denied Ward’s motion to suppress.

‘“This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).’” State v. C.B.D., 71 So.3d 717, 718 (Ala.Crim.App.2009) (quoting State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004)).

“As our Supreme Court has stated:
“ ‘The Fifth Amendment to the United States Constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V. In Miranda, the United States Supreme Court held that the right against self-incrimination “is fully applicable during a period of custodial interrogation.” 384 U.S. at 460. The Supreme Court in Miranda further held that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege_” 384 U.S. at 469. Before a custodial interrogation, a suspect must be informed of these rights, now commonly referred to as Miranda rights. 384 U.S. at 444 (“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed”). The Supreme Court in Miranda recognized that “the defendant may waive effec-tuation of these rights, provided that the waiver is made voluntarily, knowingly, and intelligently.” Id.’
“Ex parte Landrum, 57 So.3d 77, 81 (Ala.2010).”

Thompson v. State, 97 So.3d 800, 805 (Ala.Crim.App.2011).

Because Ward was a juvenile at the time he was questioned, Ward had additional rights under Alabama law. Section 12-15-202, Ala.Code 1975, effective at the time of Ward’s arrest, states, in pertinent part:

“(b) Rights of the child before being questioned while in custody. Before the child is questioned about anything concerning the charge on which the child was taken into custody, the person asking the questions shall inform the child of the following rights:
“(1) That the child has the right to a child’s attorney.
“(2) That if the child is unable to pay for a child’s attorney and if the parent, legal guardian, or legal custodian of the child has not provided a child’s attorney, one will be appointed.
“(3) That the child is not required to say anything and that anything the child says may be used against the child.
“(4) That the child has a right to communicate with his or her parent, legal guardian, or legal custodian, whether or not that person is present. If necessary, reasonable means will be provided for the child to do so.”

Ward challenges the decision of the circuit court to deny his motion to suppress his statements because, according to him, there was not a “clear, valid conveyance that Ward had a right to have a family member present.” (Ward’s brief, p. 27.) The State argues, however, that there was sufficient evidence for the circuit court to conclude that there was substantial compliance with the juvenile Miranda requirement.

At the suppression hearing the State offered the testimony of Officer Keith Cook, which, the State says, tended to show that Ward was Mirandized as a juvenile before Cook elicited certain statements from Ward. On direct examination, Officer Cook testified as follows:

“[Prosecutor]: Well, what did you ask him before—
“[Officer Cook]: I asked him did he need to call anybody in his family or anybody.
“[Prosecutor]: And did he acknowledge to you that he wanted to call anybody in his family at that point?
“[Officer Cook]: No — he said no.”

(R. 151.) Later, on cross-examination, Officer Cook testified as follows:

“[Defense Counsel]: Okay. At what point did you ask him if — I believe you stated that you asked him if there was anybody that you needed to call for him. When did you do that?
“[Officer Cook]: Right after I advised him of what he was charged with.
“[Defense Counsel]: Okay. Why did you ask him that?
“[Officer Cook]: To see if he needed anybody to come down, because I just had told him what he was being charged with.
“[Defense Counsel]: Was that, ‘Do I need to let anybody know where you are?’
“[Officer Cook]: No. I said, ‘Do you need to contact your family?’
“[Defense Counsel]: Why did you ask him if he needed to contact his family?
“[Officer Cook]: If I charge somebody, that’s just a practice of mine. I always ask them if they need to contact anybody.
“[Defense Counsel]: Okay. And that seems like a polite — nice thing to do. And you do that whether they’re — that’s your practice? That’s the standard operating procedure?
“[Officer Cook]: If they are being charged and taken to the jail.
“[Defense Counsel]: All right. And is that for the purpose of family knowing where they are, not worrying about them?
“[Officer Cook]: Or if they want to tell them anything, ask them anything. You know, just—
“[Defense Counsel]: Okay. Just a general kind of question you do, generally?
“[Officer Cook]: If they’re under arrest.
“[Defense Counsel]: Okay. Did you advise Mr. Ward — and then you went into advising him of his standard Miranda rights. Right?
“[Officer Cook]: Yes, sir. Yes, sir.
“[Defense Counsel]: That’s everything that was said?
“[Officer Cook]: Yes, sir.
“[Defense Counsel]: There was nothing else said about family?
“[Officer Cook]: No, sir, after—
“[Defense Counsel]: All right. So you never advised him that he may have a right to communicate with his parent or guardian, specifically prior to giving you a statement, did you?
“[Officer Cook]: No, sir.
“[Defense Counsel]: Okay. And there’s nothing on that waiver-of-rights form that’s marked State’s Exhibit 30 that says anything about him communicating with his family before he gave a statement, does it?
“[Officer Cook]: No, sir.
“[Defense Counsel]: Do you know how old Mr. Ward was whenever you arrested him?
“[Officer Cook]: Yes, sir.
“[Defense Counsel]: How old was he?
“[Officer Cook]: 17.”

(R. 155-57.) Before the circuit court denied Ward’s motion to suppress, it stated:

“Mr. Cook — or Investigator Cook did, in my opinion, give Mr. Ward, the defendant, an opportunity to talk with family members. I think, at some basic level, that was an opportunity for him to talk to a parent. I think he was fully aware, based on his own testimony, that he was being arrested on the offense of robbery in the first degree — by his own testimony in the suppression hearing. Therefore, I am not going to suppress the statement[s].”

(R. 167.)

The State contends that the exchange between Ward and Officer Cook sufficiently informed Ward of his juvenile Miranda rights despite the fact that Officer Cook failed to use the “exact language of the statute.” (State’s brief, p. 9.) Additionally, the State argues that whether Ward was clearly informed of his juvenile Miranda warnings did not hinge on Officer Cook’s failure to use the word “right”; thus, the State contends that the circuit court did not err in admitting Ward’s statements into evidence. (State’s brief, p. 9.) We do not agree, however, with the State’s argument that Ward was adequately informed of his juvenile Miranda warnings.

The United States Supreme Court has stated the following concerning Miranda warnings:

“ ‘Reviewing courts ... need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably “conve[y] to [a suspect] his rights as required by Miranda.” [California v.] Prysock, supra, 453 U.S. [355], at 361 [101 S.Ct. 2806, 69 L.Ed.2d 696 (1981) ].’
“Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). See California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981) (‘Miranda itself indicated that no talismanic incantation was required to satisfy its strictures.’).”

Albarran v. State, 96 So.3d 131, 149 (Ala.Crim.App.2011). Additionally, this Court had held that “[n]o precise language is required as long as the substance of the Miranda warning is given.” Jones v. State, 47 Ala.App. 568, 570, 258 So.2d 910, 912 (Ala.Crim.App.1972) (holding that the phrase “ ‘one will be appointed to represent you before any questions’ ” was “sufficiently clear to convey to the [defendant] that he had the right to confer with an attorney before any questions and then to decide upon his course of action”).

In Ex parte Price, 725 So.2d 1063 (Ala.1998),’ the Alabama Supreme Court held:

“[I]t is well settled that, before being questioned, an accused in custody must be informed in clear and unequivocal terms that he has the right to remain silent, that anything he says can be used against him in court, that he has the right to have counsel present at the interrogation, and that if he is indigent and cannot afford to pay a lawyer, the court will appoint one to represent him during the interrogation.”

725 So.2d 1063 at 1067 (emphasis added). See also Ex parte Siebert, 555 So.2d 780, 781-82 (Ala.1989). In addition to the standard Miranda requirements, a juvenile must be advised of his additional right to communicate with a parent or guardian. See § 12-15-202, Ala.Code 1975.

Prior to January 1, 2009, the effective date of § 12-15-202, Ala.Code 1975, Rule 11(B), Ala. R. Juv. P., stated:

“Before the child is questioned about anything concerning the charge on which the child was arrested, the person asking the questions must inform the child of the following rights:
“(1) That the child has the right to counsel;
“(2) That if the child is unable to pay a lawyer and if the child’s parents or guardian have not provided a lawyer, one can be provided;
“(3) That the child is not required to say anything and that anything the child says may be used against the child;
“(4) That if the child’s counsel, parent, or guardian is not present, then the child has a right to communicate with them, and that, if necessary, reasonable means will be provided for the child to do so.”

The language in Rule 11(B)(4), Ala. R. Juv. P., is substantially similar to the statutory provision applicable in Ward’s case, § 12-15-202(b)(4), Ala.Code 1975. Thus, our caselaw applying Rule 11(B)(4), Ala. R. Juv. P., is persuasive authority in construing § 12-15-202(b)(4).

In State v. Nelson, 898 So.2d 1245 (Ala.Crim.App.2003), a 16-year-old defendant, was questioned by law enforcement concerning alleged offenses. On appeal, the State argued that the trial court improperly granted the defendant’s motion to suppress a statement the defendant had made to law enforcement. The trial court’s holding was quoted by this Court:

“‘[I]t is the finding of this Court that the juvenile Miranda or, as it is sometimes referred to, the Super Miranda, informing the juvenile that he could have contact with a parent or guardian was necessary. Clearly, evidence would indicate that there was contact between the Russellville Police Department and the family of the juvenile. However, it is clear that Rule 11 of the Alabama Rules of Juvenile Procedure provides “that if the child’s counsel, parent, or guardian is not present, then the child has the right to communicate with them, and that, if necessary, reasonable means will be provided for the child to do so.” (Emphasis added). The child must be informed that he has the right to communicate with his family. Law enforcement electing to talk with a family member does not fulfill the requirement.
“ ‘Therefore, it is ORDERED, ADJUDGED and DECREED that the statements given by the Defendant ... in the referenced cases, ... [are] hereby suppressed.’ ”

893 So.2d at 1246-47 (capitalization in original). This Court rejected the State’s narrow argument concerning legislative intent — specifically, the State argued that § 12-15-34.1, Ala.Code 1975, divests a juvenile of his rights under Rule 11(B). This Court ultimately held that the trial court properly granted the defendant’s motion to suppress after it noted the State’s concession that the defendant had not been advised of his juvenile rights under Rule 11(B), Ala.Code 1975. See also Young v. State, 730 So.2d 1251, 1254 (Ala.Crim.App.1998) (holding that “[defendant’s] custodial statement was wrongfully admitted in evidence because [defendant] was not informed that he had a right to communicate with his parent or guardian, as provided in Rule 11(B), Ala. R. Juv. P.”).

In W.T.K. v. State, 598 So.2d 33, 37 (Ala.Crim.App.1992), the juvenile defendant argued on appeal that the trial court erred when it admitted his confession into evidence. Specifically, the defendant claimed that “the statement of his rights that he was read was erroneous because it did not say that reasonable means would be taken to provide the [defendant] with the opportunity to talk with his parents.” In rejecting the defendant’s argument, this Court relied on its decision in M.B.M. v. State, 563 So.2d 5 (Ala.Crim.App.1989), in which it held that “the confession was not rendered involuntary by the fact that the rights read to the defendant did not include the phrase ‘reasonable means will be provided.’” 598 So.2d at 37. Nevertheless, we have held that

“ ‘[w]hen the State offers in evidence a juvenile’s statement, it must show that the juvenile made the statement after being advised of his rights under Rule 11[ (B) ], Ala. R. Juv. P. Ex parte Whi- senant, 466 So.2d 1006 (Ala.1985); Carr v. State, 545 So.2d 820 (Ala.Crim.App.1989). Rule 11[(B)] requires that a juvenile be given the standard Miranda warnings and also requires that he be told that he has the “right to communicate with [his counsel, parent, or guardian if they are not present] and that, if necessary, reasonable means will be provided for him to do so.” ’ ”

L.L.J. v. State, 746 So.2d 1052, 1055 (Ala.Crim.App.1999) (quoting Ex parte Smith, 611 So.2d 1023, 1024-25 (Ala.1992)). Here, in addition to not being clearly informed that reasonable means would be provided for him to communicate with a parent, legal guardian, or legal custodian, Ward was not informed of his right to communicate -with a parent, legal guardian, or legal custodian.

In its brief, the State points to our decision in Weaver v. State, 710 So.2d 480 (Ala.Crim.App.1997); specifically, the State asserts that “this Court has indicated that the warning should be that a defendant ‘can communicate’ with his parents.” (State’s brief, p. 9 (citing Weaver, 710 So.2d 480 (quoting Ex parte Whisenant, 466 So.2d 1006, 1011 (Ala.1985) (Torbert, C.J., concurring in part and dissenting in part)))).

We are not persuaded, however, that the State’s isolated quotation from Weaver is contrary to our holding here. Immediately following the quoted language from Weaver is this language:

“This Court has recognized the importance of affording children the additional right in Rule 11(B)(4), stating:
“ ‘Informing the child of his right to communicate with a parent or guardian serves two important purposes. First, “[t]his simple warning will give the juvenile the opportunity to obtain the guidance necessary in order for him to evaluate his rights.” Ex parte Whisenant, 466 So.2d at 1012. (Torbert, C.J., concurring in pertinent part). Secondly, the rule recognizes that “the parent or guardian may be the conduit through which the juvenile secures an attorney.” Id.’
“Payne v. State, 487 So.2d 256, 259 (Ala.Crim.App.1986), quoted in L.J.V. v. State, 545 So.2d 240, 245 (Ala.Crim.App.1989).
“ ‘ “The rationale of courts holding a child’s request to see a parent equivalent to a request to see an attorney ... is that, while an adult in trouble normally requests an attorney’s assistance, a child logically expresses his desire for help and his unwillingness to proceed alone by requesting a parent’s presence.... [I]n the case of a child, the right to assistance of counsel is hollow unless a parent is present, for a parent is normally the child’s only avenue through which to evaluate and exercise the right to counsel.”
“ ‘[Samuel M. Davis, Rights of Juveniles § 8.13 at 3-64.5 (2d ed.1991) ].’
“E.C. v. State, 623 So.2d 364, 368 (Ala.Crim.App.1992).”

Weaver, 710 So.2d at 485 (emphasis added). Thus, the purpose of the juvenile warnings is not to require that the juvenile have a reason or need before he may initiate contact with a parent or guardian; instead, the warnings are to inform the juvenile that he may exercise his right to communicate with a parent or a guardian and that, if he wants to communicate with a parent or a guardian, reasonable means will be provided for him to do so.

The record in this case reflects that Ward was arrested for first-degree robbery and was thereafter transported to the criminal-investigation division of the police department where: (1) authorities advised Ward of the charge against him; (2) asked Ward if he needed to contact his family; (3) advised Ward of his standard Miranda rights; and (4) instructed Ward that he could sign a waiver-of-rights form, which Ward signed. Under § 12-15-202(b), Ala. Code 1975, a child in custody must be informed of his or her right to communicate with a “parent, legal guardian, or legal custodian ” before being “questioned about anything concerning the charge on which the child was taken into custody” (emphasis added). While in custody, Ward was never explicitly informed of his right to communicate with his parent or guardian before being questioned about the charge of first-degree robbery, nor was he informed that reasonable means would be provided for him to do so, as provided in § 12-15-202(b), Ala.Code 1975. Rather, Officer Cook merely asked Ward if he “need[ed] to contact [his] family”; Cook did not inform Ward that he had the right to do so and that, if necessary, Ward would be provided with reasonable means to do so. Furthermore, Officer Cook’s reference to “family” did not specifically convey to Ward that he had the right to communicate with a parent, legal guardian, or legal custodian. Thus, Officer Cook failed to effectively communicate to Ward that he was entitled to speak with his parent or guardian regardless of whether Ward thought he “needed” to or not. See California v, Prysock, 453 U.S. 355, 363 (1981) (Stevens, J., dissenting) (holding “[t]he warnings given [defendant] were defective, not because ‘the officer did not parrot the language of Miranda,’ but because, in the form in which the warnings were given, they failed to convey the essential information required by Miranda.”). It is clear from the record that authorities did not fully convey to Ward his juvenile Miranda rights as required by § 12-15-202(b), Ala.Code 1975. Accordingly, Ward was deprived of his juvenile Miranda rights under § 12-15-202(b), Ala.Code 1975, and the circuit court erroneously admitted the statements Ward made to the police.

We must now consider whether the admission of Ward’s statements into evidence was harmless error. Rule 45, Ala. R.App. P. See Coral v. State, 628 So.2d 954, 973 (Ala.Crim.App.1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012 (1994).

“The proper inquiry in determining whether the constitutional error in this case is harmless was set out by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967):
“ ‘In fashioning a harmless-constitutional-error rule, we must recognize that harmless-error rules ‘ can work very unfair and mischievous results when, for example, highly important and persuasive evidence or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one....
‘“... We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 [(1963)]. There we said: “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Id., at 86-87, 84 S.Ct. at 230.... Certainly error, constitutional error, in illegally admitted highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was not injury or to suffer a reversal of his erroneously obtained judgment. There is little, if any, difference between our statement in Fahy v. State of Connecticut about “whether there is a reasonable possibility that the evidence complained of did not contribute to the conviction” and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard.... ’

386 U.S. at 23-24, 87 S.Ct. 824.

“ ‘In order for the error to be deemed harmless under Rule 45, [Ala. R.App. P.], the state must establish that the error did not injuriously affect the appellant’s substantial rights.’ Coral v. State, 628 So.2d [954] at 973 [(Ala.Crim.App.1992)].” Young v. State, 730 So.2d 1251, 1255 (Ala.Crim.App.1998).

In the present case, the State introduced into evidence an audio recording of Ward’s statements concerning the events before and after the robbery at the gas station. In his first statement, Ward stated that he was with Kinsey and McGee around 12:30 a.m. on the morning of the robbery. Ward stated that he saw a sawed-off shotgun in the car parked outside McGee’s trailer and that Kinsey took the shotgun out of the car before Kinsey left McGee’s trailer; Ward claimed that “he believed that they were going to rob someone.” (Ward’s brief, p. 15.) Ward further stated that he saw Kinsey and an unknown male return to McGee’s trailer around 5:00 a.m. In his second statement, however, Ward claimed that after Kinsey and the unknown male returned to McGee’s trailer, the unknown male wanted to exchange clothes with Ward and that the unknown male gave Ward a striped shirt and a pair of embroidered blue-jean shorts, which were allegedly the same clothes one of the robbers was wearing in the surveillance video. Also, the victim testified that the man who took money out of the store’s safe was wearing a striped shirt and jeans with patchwork. Thus, the second statement not only placed the person wearing the striped shirt and the embroidered blue-jean shorts at the crime scene, but also indicated that the person wearing the striped shirt and the embroidered blue-jean shorts was an active participant in the robbery. Without Ward’s statement, the residual evidence did not make for an “ironclad” circumstantial case against Ward. See Ex parte Greathouse, 624 So.2d 208, 211 (Ala.1993). The State even referenced Ward’s statement concerning the clothes the person in the surveillance video was wearing on the morning of the robbery— the striped shirt and the embroidered blue-jean shorts — in its argument against Ward’s motion for a judgment of acquittal. The State specifically argued:

“[Prosecutor]: Yes, sir, Judge. I think we have a very strong circumstantial case in this case that the defendant has admitted in his statement, that he was actually wearing the clothes that are in the video of the robbery. We have had Mr. McGee’s testimony that [Ward] came over that morning wearing nothing but the shorts that are State’s Exhibit, I think, 30, that are already in evidence and that were clearly visible in the video at the time of the robbery. I think all the facts and circumstances, the jury can conclude and find beyond a reasonable doubt that this defendant was involved in the robbery that morning and is guilty.”

(R. 206.)

Accordingly, we are of the opinion that the erroneous admission of Ward’s statements was not harmless beyond a reasonable doubt; therefore, we must reverse the judgment of the circuit court and remand this cause for further proceedings consistent with this opinion.

APPLICATION FOR REHEARING OVERRULED; OPINION OF MAY 25, 2012, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

      . The State also- argues for the first time on rehearing that the juvenile Miranda rights were not required because Ward was charged with first-degree robbery, an offense that removed Ward's prosecution to the circuit court. See § 12-15-204, Ala.Code 1975. Specifically, the State argues that the decision to charge Ward with a Class A felony was made prior to any questioning regarding the specific offense and that, therefore, Ward was not entitled to the protections of § 12-15-202, Ala.Code 1975. (State’s brief in support of application for rehearing, p. 12.) We note, however, that this argument is contrary to what the State conceded in its brief on original submission. See (State's brief, p. 7) ("It would appear that Anderson v. State, 729 So.2d 900 (Ala.Crim.App.1998), cited by the Defendant, which holds that the warning of Rule 11(B) is required even when the child must be prosecuted in the Circuit Court, is equally applicable here.").
      In Water Works & Sewer Board of City of Selma v. Randolph, 833 So.2d 604, 608-09 (Ala.2002), the Alabama Supreme Court stated:
      “The well-settled rule of this Court precludes consideration of arguments made for the first time on rehearing. See Ex parte Lovejoy, 790 So.2d 933, 938-39 (Ala.2000), where this Court stated:
      " 'Vesta raises for the first time in its application for rehearing the argument that it is a third-party beneficiary of the retail installment contract between Love-joy and Allen Motor Company. "We can not sanction the practice of bringing up new questions for the first time, in an ex parte application for rehearing.” Robinson v. Allison, 97 Ala. 596, 604, 12 So. 604 (1893) (on application for rehearing). "We cannot sanction the practice of bringing up new questions for the first time in application for rehearing.” Kirkland v. Kirkland, 281 Ala. 42, 49, 198 So.2d 771, 777 (1967) (on application for rehearing). "We cannot sanction the practice of bringing up new questions for the first time in applications for rehearing.” Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 735, 310 So.2d 210, 212 (1975) (on application for rehearing). "New supporting arguments presented for the first time on rehearing generally will not be considered.” Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251, 253 (Ala.1985) (on application for rehearing). "[Tjhis argument was raised for the first time on application for rehearing, and therefore will not be considered.” Schulte v. Smith, 708 So.2d 138, 141 n. 2 (Ala.1997) (on application for rehearing).’ "
      Accordingly, we will not consider the State's argument, made for the first time on rehearing, that the juvenile Miranda rights were not required.

      . This section became effective January 1, 2009. Before the effective date of this section. Rule 11, Ala. R. Juv. P., stated the applicable juvenile Miranda rights.

      . As we note below, Ward was asked only if he needed to contact his "family"; the officer did not specifically reference a parent, legal guardian, or legal custodian.

      . Although Ward replied “No” in response to Officer Cook's inquiry, because that inquiry was insufficient to convey the juvenile Miranda rights, Ward’s response to that inquiry was not a waiver of those rights.


source: Caselaw Access Project

author: JOINER, Judge. WELCH, Judge,

license: Public Domain

text:
    David Wayne ACRA v. STATE of Alabama.
    CR-10-1581.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2012.

      Bryan A. Stevenson, Andrew Reed Childers, and Charlotte Morrison, Montgomery, for appellant.

      Luther Strange, atty. gen., and Robin Denise Scales, asst. atty. gen., for appellee.
   JOINER, Judge.

David Wayne Acra appeals the summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. We reverse the judgment of the circuit court and remand this matter for further proceedings.

In June 2009, Acra pleaded guilty to violating the registration requirements of the Community Notification Act (“the CNA”), formerly § 15-20-22, Ala.Code (1975). Acra did not appeal his conviction. In November 2010, this Court in State v. Adams, 91 So.3d 724, 738 (Ala.Crim.App.2010), held:

“[Section] 15-20-22(a)(l) is unconstitutional and we address here two of the reasons: first, the statute violates the guarantee to equal protection under the law as provided in the Fourteenth Amendment to the United States Constitution, and in Article I, §§ 1, 6, and 22, of the Alabama Constitution of 1901 because it resulted in an unreasonable and discriminatory classification based on wealth; and, second, the statute is unconstitutional as applied to the defendant in this case, under the Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and under Article I, § 15, Ala. Const. 1901, because the requirement in former § 15-20-22(a)(l) that a sex offender provide an ‘actual address at which he or she will reside’ punishes the defendant solely for his status of being homeless and, thus, violates the prohibition against cruel and unusual punishment.”

In May 2011, Acra filed a standard Rule 32 form and attached to it a supplement setting out his detailed claim. Acra indicated on the standard form that he was seeking relief under every subsection of Rule 32.1, Ala. R.Crim. P. In his supplement, Acra argued, among other things, that the trial court

“was without jurisdiction to prosecute him or impose sentence upon him due to [a] lack of constitutionality of the community notification act ... because [Acra] is a homeless[ ] [and] indigent offender who had ended his previous sentence for [first-degree sexual abuse] ... and could not supply his prison custodian a true address in which he would reside due to his homelessness.”

(C. 19-20.) In his petition, Acra raised arguments similar to those raised and addressed in Adams. In its response to Acra’s petition, the State argued that Acra’s petition was precluded, was time-barred, was insufficiently pleaded, and was without merit. (C. 27-32.) The circuit court agreed with the State and summarily dismissed Acra’s petition.

Acra now appeals, arguing that his petition was sufficiently pleaded and that he was entitled to an evidentiary hearing. (Acra’s brief, p. 5.) We agree, concluding that Acra has asserted a ground for relief under Rule 32.1, Ala. R.Crim. P., that his asserted ground for relief is not precluded, and, finally, that Acra is entitled to a hearing on his claim because he has pleaded facts that, if true, would entitle him to relief. We address each issue in turn.

“ ‘The standard of review on appeal in a postconviction proceeding is whether the [circuit court] abused [its] discretion when [it] denied the petition. Ex parte Heaton, 542 So.2d 981 (Ala.1989).’ ” Strickland v. State, 771 So.2d 1123, 1125 (Ala.Crim.App.1999) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992)). However, “when the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). In either instance, this Court may affirm the judgment of the circuit court for any reason, even if not for the reason stated by the circuit court. See Reed v. State, 748 So.2d 231 (Ala.Crim.App.1999) (“If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition.”).

I. Grounds for Relief

Rule 32 provides a limited scope of review. Rule 32.1, Ala. R.Crim. P. Specifically, Rule 32.1 permits defendants to “institute proceedings ... to secure relief’ on the following grounds:

“(a) The constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.
“(b) The court was without jurisdiction to render judgment or to impose sentence.
“(c) The sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law.
“(d) The petitioner is being held in custody after the petitioner’s sentence has expired.
“(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court....
“(f) The petitioner failed to appeal within the prescribed time from the conviction or sentence itself or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner’s part.”

As noted above, Acra indicated in his petition that he was seeking relief under every subsection of Rule 32.1, Ala. R.Crim. P.; on appeal, however, Acra asserts only three grounds for relief.

In his first argument, Acra conflates subsections (b) and (c) — that the trial court was without jurisdiction to render judgment or to impose sentence and that Acra’s sentence is illegal. (Acra’s brief, pp. 18-20.) Specifically, Acra argues that Adams “establishes that the trial court was without jurisdiction to render judgment or impose a sentence on [Acra] for violating a statute that is unconstitutional as applied to him” and that Acra is serving an illegal sentence because, he says, according to Adams, the trial court was deprived of jurisdiction to accept Acra’s guilty plea. (Acra’s brief, pp. 18-20.) We agree with the State, however, that Acra’s argument is without merit. Contrary to Acra’s contention, this Court’s holding in Adams does not implicate the jurisdiction of the trial court; instead, this Court in Adams upheld the dismissal of an indictment on the basis that the CNA registration requirement was unconstitutional as applied to Adams, an indigent defendant. Adams, 91 So.3d at 742. Likewise, because Acra’s illegal-sentence argument hinges on his contention that Adams implicates the jurisdiction of the trial court, it, too, fails.

As the State asserts in its brief, Acra actually raises a constitutional claim which “falls in Rule 32.1(a)[, Ala. R.Crim. P.].” (State’s brief, pp. 7, 9.) The true nature of Acra’s claim — that his conviction and resulting sentence are unconstitutional — is argued throughout his brief. Specifically, Acra argues as follows:

“Acra was illegally and unconstitutionally convicted under former Ala.Code § 15-20-22(a)(l), and hence denied his guarantee to due process and equal protection under the law as provided in the Fourteenth Amendment of the United States Constitution, and Article I, §§ 1, 6, and 22, of the Alabama Constitution, and his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and under Article I, § 15 of the Alabama Constitutional.”

(Acra’s petition, p. 13; see also Acra’s brief, p. 17 (“Consequently, Mr. Acra’s conviction violates his rights to equal protection and due process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as Article I, §§ 1, 6, and 22, of the Alabama Constitution.”).) We agree with the State that “[djespite Acra’s appellate contention otherwise, in the circuit court Acra raised a constitutional claim” under Rule 32.1(a), Ala. R.Crim. P. (State’s brief, p. 9.) We address Acra’s claim accordingly.

II. Preclusion of Remedy

Having determined that Acra is asserting a constitutional claim under Rule 32.1(a), Ala. R.Crim. P., we next address whether that claim is precluded.

As a threshold matter, we agree with the State that constitutional claims generally are subject to the limitations period imposed by Rule 32.2(c), Ala. R.Crim. P., and that, in this case, Acra’s constitutional claim appears to be untimely under that rule. Acra, however, urges this Court to find that the holding in Adams is retroactive and applies to cases on collateral review. (Acra’s brief, p. 11.) If the holding in Adams applies retroactively to cases on collateral review, Acra is not excluded from relief by the grounds of preclusion set out in Rule 32.2, Ala. R.Crim. P. See generally Ferguson v. State, 13 So.3d 418, 425-33 (Ala.Crim.App.2008) (addressing the retroactivity of caselaw on an issue deemed precluded by the circuit court); Sanders v. State, 815 So.2d 590 (Ala.Crim.App.2001) (holding that because the decision of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was not retroactive to cases on collateral review, petitioner’s argument asserting an Apprendi claim in a petition for postcon-viction relief filed pursuant to Rule 32, Ala. R.Crim. P., was without merit). See also 28 U.S.C. § 2244(b)(2)(A) (“A claim presented in a second or successive habeas corpus application ... that was not presented in a prior application shall be dismissed unless — the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable....”).

The United States Supreme Court has provided a “framework to be used in determining whether a rule announced in [an] opinionf ] should be applied retroactively to judgments in criminal cases that are already final on direct review.” Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). Using this framework, we first ask whether the rule announced in an opinion is a new rule or whether it is an old rule. “[A]n old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review.” Id. (emphasis added). A new rule, however, may apply to cases on collateral review if “the rule [ ] come[s] within ... the ... exceptions to the general principle that new rules will not be applied on collateral review.” Saffle v. Parks, 494 U.S. 484, 494, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). Acra argues only that our decision in Adams announced a new rule of constitutional law; accordingly, we must address whether the rule announced in Adams is a new rule, and whether, if it is a new rule, it falls within an exception to the general principle that new rules do not apply retroactively to cases on collateral review.

“In Teague [v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ], [the United States Supreme Court] defined a new rule as a rule that ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” Saffle, 494 U.S. at 488. Applying this definition, it is clear that the rule announced in Adams is a “new rule” for the purposes of our retroactivity analysis; as we recognized in Adams, “[w]e ... found no reported case addressing th[e] precise issue [raised by Adams] in Alabama or in any other jurisdiction.” Adams, 91 So.3d at 739. Having concluded that the rule announced in Adams is a new rule, the next step in the Teague framework is to determine whether the new rule announced by Adams falls into an exception to the general principle that a “new rule” does not apply to cases on collateral review.

“A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a ‘ “watershed rul[e] of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding.’ ” Whorton, 549 U.S. at 416 (quoting Saffle, 494 U.S. at 495, quoting in turn Teague, 489 U.S. at 311). See also Ferguson, 13 So.3d at 429-31 (recognizing the framework established in Teague). In this case, Adams did not announce a rule of criminal procedure; the question, then, is whether Adams announced a substantive rule.

The substantive-rule

“exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe ... or addresses a substantive categorical guarantee accorded by the Constitution, such as a rule prohibiting a certain category of punishment for a class of defendants because of their status or offense.”

Saffle, 494 U.S. at 494-95 (internal quotation marks and citations omitted). Likewise, this Court in Bush v. State, 92 So.3d 121, 128 (Ala.Crim.App.2009), stated that “[a] new rule can be applied retroactively to cases on collateral review only if [the] rule forbids criminal punishment of certain primary conduct or prohibits a certain category of punishment.” See also Ferguson, 13 So.3d at 430-31.

In Adams, this Court stated:

“Thus, the State has created separate consequences for indigent homeless offenders and for nonindigent homeless offenders. The continued deprivation of liberty following the completion of the sentence for the original sex offense is suffered by those who have no resources . The statutory scheme thus creates a classification based on wealth, depriving a certain class of citizens indefinitely of their liberty as a result of their inability to pay. The law, though not discriminatory on its face, is discriminatory in its application. This discrimination based on wealth, as the United States Supreme Court has held in Griffin and its progeny, is constitutionally fatal. Therefore, the statute as it was written is unconstitutional.
“We are aware, as was the trial court in this case, that the intent of the Alabama Legislature — to protect the public, particularly children, from convicted sex offenders — is a vital goal. The statute the legislature enacted, however, unconstitutionally subjects indigent homeless sex offenders to a denial of their liberty based solely on their inability to pay. The State is not powerless to monitor and track homeless indigent sex offenders, but it must turn to constitutional methods to do so — methods that do not deprive defendants of their liberty based only on their inability to pay, and particularly without a determination that a defendant made efforts to comply with the statute and failed to do so only because he or she was indigent. The State is free to develop many alternative means to avoid the inadvertent wealth classification it has created here and that still satisfy the goal of protecting the public.”

Adams, 91 So.3d at 742 (citations omitted).

Acra asserts, and we agree, that the rule announced in Adams falls within the substantive-rule exception. Specifically, Acra is correct that the holding in Adams — that the former CNA registration requirement was unconstitutional as applied to Adams, who was indigent and homeless, because the provision violated equal-protection principles and the constitutional prohibitions against cruel and unusual punishment — “‘forbids criminal punishment of certain primary conduct or prohibits a certain category of punishment.’ ” (Acra’s brief, p. 13 (quoting Bush, supra)). Adams can be read to prohibit the legislature from criminalizing conduct that arises solely from indigency or, alternatively, can be read to prohibit the legislature from punishing a class of defendants solely because of their indigency. , Saffle, supra.

As determined by the analysis, our holding in Adams is retroactive; accordingly, Aera’s Adams claim is not subject to the preclusions found in Rule 32.2, Ala. R.Crim. P. Ferguson, supra. After having determined that Adams is retroactive, the next step in our Rule 32 analysis is to determine whether Acra is entitled to an evidentiary hearing on his claim.

III. Burden of Pleading

“Rule 32.3 states: ‘The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’” Ex parte Hodges, [Ms. 1100112, Aug. 26, 2011] - So.3d - , - (Ala.2011). With respect to the pleading requirement, the petition “ ‘must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.’ ” Boyd v. State, 913 So.2d 1113, 1125 (Ala.Crim.App.2003) (quoting Rule 32.6, Ala. R.Crim. P.). “ ‘[T]he unrefuted facts set out by the petitioner must be taken as true.’” Chaverst v. State, 517 So.2d 643, 644 (Ala.Crim.App.1987) (Ex parte Floyd, 457 So.2d 961, 962 (Ala.1984)).

Furthermore, ‘“when a petition contains matters which, if true, would entitle the petitioner to relief, an evidentiary hearing must be held.’ ” Ex parte Hodges, — So.3d at - (quoting Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985)).

In his petition, Acra asserted, in relevant part, the following:

“[Acra] was an indigent inmate who had served 7 years of incarceration[ ] within the confines of an Alabama penitentiary, wherein he was precluded from working at gainful employment, or being involved in any work release program. He lost his family as well as his home while serving this sentence. [Acra] could not give the State of Alabama an address to be released to upon the end of his sentence....
“David Acra is a homeless and indigent prisoner in an Alabama prison and has been homeless and indigent since his conviction for his crime of [first-degree sexual abuse] in 2002[;] therefore[,] he has no address to provide the State for which he could reside upon his release from prison on or around June 17, 2009, and he has no funds or assets in which he could use to pay for even [ ] temporary housing, and every shelter, re-entry program, or halfway house he corresponded to in order to find shelter either did not accept sex offenders, or charges a deposit to process the application^] Therefore, [Acra] was powerless to meet the mandates of this statute ”

(C. 21.) Notably, the State did not dispute the facts asserted in Acra’s brief (C. 27-32); thus, we must take them as true, Chaverst, supra. The facts asserted by Acra — at least as related to the instant issue — mirror those facts raised by the petitioner in Adams, and we therefore conclude that Acra is entitled to an evidentia-ry hearing because Acra has pleaded facts that, if true, would entitle him to relief.

In light of the foregoing, we conclude that the judgment of the circuit court is due to be reversed and that this matter is due to be remanded to the circuit court for an evidentiary hearing.

REVERSED AND REMANDED.

WINDOM, P.J., and KELLUM and BURKE, JJ., concur. WELCH, J., concurs specially, with opinion.

WELCH, Judge,

concurring specially.

I agree with the majority that the judgment of the circuit court is due to be reversed. I write specially to address Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), and its impact on our continued application of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to determine whether new constitutional rules of criminal procedure are to be given retroactive effect. In Danforth, the United States Supreme Court discussed the scope of its decision in Teague and stated: “A close reading of the Teague opinion makes clear that the rule it established was tailored to the unique context of federal habeas and therefore had no bearing on whether States could provide broader relief in their own postconviction proceedings than required by that opinion.” 552 U.S. at 276. The Court held: “The question in this case is whether Teague constrains the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion. We have never suggested that it does, and now hold that it does not.” Id. at 266.

Alabama courts have used the Teague analysis to determine whether decisions should be applied retroactively. E.g., Ex parte Harris, 947 So.2d 1139, 1143-47 (Ala.2005); Ferguson v. State, 13 So.3d 418, 429-31 (Ala.Crim.App.2008) (also citing Danforth v. Minnesota); Duncan v. State, 925 So.2d 245, 250-52 (Ala.Crim.App.2005). In light of Danforth v. Minnesota, however, it does not appear that we are required to conduct the type of analysis set out in Teague when determining the retroactivity of a new rule. However, I believe that question is one that is better decided by the Alabama Supreme Court and, therefore, that a Teague analysis was proper in this case.

For the foregoing reasons, I concur specially with the majority opinion.

      . The Alabama Legislature in Act No. 2011-640, Ala. Acts 2011, repealed the CNA and replaced it with the Alabama Sex Offender Registration and Community Notification Act, effective July 1, 2011. See § 15-20A-1 et seq., Ala.Code 1975.

      . Acra also argued in his petition that "he did not enter into [his] plea knowingly, voluntarily, or intellectually," and that he received ineffective assistance of counsel. (C. 19.) These claims are not, however, presented on appeal and are thus waived. Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995).

      . This general rule is subject to exceptions not applicable here. See, e.g., Ex parte Clemons, 55 So.3d 348 (Ala.2007).

      . The State argues that the issue of the retro-activity of Adams is being raised for the first time on appeal and, thus, should not be considered by this Court. (State's brief, p. 11— 12.) This position, however, is clearly inconsistent with the position taken below. In its response to Acra’s petition, the State asserted that "[Acra] has used Adams ... as the basis of his Rule 32 petition” and argued that Adams was not retroactive. (C. 29.) The issue of retroactivity of Adams was clearly before the circuit court, and this argument is without merit.

      . Acra does not argue that Adams announced an "old rule”; thus, we do not address that issue.


author: QUINCE, J.

text:
    Laveress HOPKINS, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-2483.
    Supreme Court of Florida.
    Sept. 13, 2012.
    Carol Stafford Haughwout, Public Defender, and Tom William Odom, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Consiglia Terenzio, Bureau Chief, and Katherine Yzquierdo Mclntire, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   QUINCE, J.

Laveress Hopkins seeks review of the decision of the Fourth District Court of Appeal in State v. Hopkins, 47 So.3d 974 (Fla. 4th DCA 2010), on the ground that it expressly and directly conflicts with the decision of the First District Court of Appeal in T.C. v. State, 852 So.2d 276 (Fla. 1st DCA 2003), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The question before us is whether the battery by detainee charge pursuant to section 784.082, Florida Statutes (2007), applies to juvenile detention centers. We answer that question in the affirmative, and find that a juvenile detention center qualifies as a “detention facility” for purposes of section 784.082. Therefore, we approve the Fourth District’s decision in Hopkins and disapprove the First District’s decision in T.C.

FACTUAL AND PROCEDURAL HISTORY

The State charged Hopkins with one count of battery by detainee in violation of sections 784.03 and 784.082, Florida Statutes (2007). At the time of the alleged offense, Hopkins was detained at the St. Lucie Regional Juvenile Detention Center. By invoking section 784.082, the battery offense was reclassified from a first-degree misdemeanor, see § 784.03(l)(b), Fla. Stat. (2007), to a third-degree felony. Hopkins moved to dismiss the battery by detainee charge, contending that a juvenile could not be lawfully charged with battery by detainee while detained in a juvenile detention facility.

A hearing was held on the motion to dismiss. While Hopkins relied on the First District’s decision in T.C., which held that the battery by detainee offense under section 784.082 was inapplicable to juveniles held in juvenile facilities, the State did not rely on any case law in support of the charge. Finding section 784.082 “clear and unambiguous,” the trial court maintained that a “juvenile detention facility” was an “other detention facility” under the statute. The trial court reached this same conclusion when it read section 784.082 in pari materia with “detention center or facility,” as defined in chapters 984 and 985, to mean: “a facility used pending court adjudication or disposition or execution of court order for the temporary care of a child alleged or found to have committed a violation of law.” §§ 984.03(19), 985.03(19), Fla. Stat. (2007). In addition, the trial court found significant the language used in the preamble to chapter 96-293, which enacted section 784.082: “Whereas, with the rising incidence of crime, especially juvenile crime.... ” Ch. 96-293, preamble, § 4, Laws of Fla. (emphasis added). As noted by the trial judge, section 784.081, Florida Statutes (2007), was also created by chapter 96-293. Section 784.081 also reclassifies assaults and batteries committed against school district employees and officials, among others. § 784.081, Fla. Stat. (2007).

Notwithstanding its findings, the trial court dismissed the battery by detainee charge based on its belief that it was bound to follow T.C. The trial court urged the State to appeal its decision. In its written order, the trial court noted the Fourth District’s decision in J.A. v. State, 743 So.2d 601 (Fla. 4th DCA 1999), which affirmed the trial court’s order adjudicating a juvenile guilty of battery upon a fellow detainee in violation of sections 784.03 and 784.082, and the Fifth District’s decision in J.A.D. v. State, 855 So.2d 1199 (Fla. 5th DCA 2003), which affirmed the trial court’s adjudication of delinquency of battery by detainee pursuant to section 784.082. However, the trial court declined to follow J.A. and J.A.D. because T.C. “seem[ed] to be on point and controlling.”

The State appealed the trial court’s order granting Hopkins’ motion to dismiss. State v. Hopkins, 47 So.3d 974 (Fla. 4th DCA 2010). The Fourth District reversed and remanded the case for reinstatement of the battery by detainee charge, noting that in the past it, in J.A., as well as the Fifth District in J.A.D, had “affirmed a trial court order adjudicating a juvenile guilty of battery upon a fellow detainee.” Id. at 975.

ANALYSIS

The question before this Court is whether the language “detention facility” as used in section 784.082 includes juvenile detention centers. As the issue presented is one of statutory interpretation, the standard of review is de novo. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007). Hopkins argues that the trial court below properly dismissed the charge in reliance on T.C., which according to Hopkins, was a decision grounded on the rule of lenity. See § 775.021(1), Fla. Stat. (2007). On the other hand, the State contends that a juvenile who commits a battery while detained in a juvenile detention facility may be properly charged with battery by detainee under section 784.082.

Juvenile detention centers are facilities used “pending court adjudication or disposition or execution of court order for the temporary care of a child alleged or found to have committed a violation of law.” See § 985.03(19), Fla. Stat. (2007); see also § 985.03(46), Fla. Stat. (2007) (defining “[sjecure detention center or facility” as a “physically restricting facility for the temporary care of children, pending adjudication, disposition, or placement”). On October 1, 1996, the Florida Legislature enacted section 784.082, which provides as follows:

Whenever a person who is being detained in a prison, jail, or other detention facility is charged with committing an assault or aggravated assault or a battery or aggravated battery upon any visitor to the detention facility or upon any other detainee in the detention facility, the offense for which the person is charged shall be reclassified as follows:
(1) In the case of aggravated battery, from a felony of the second degree to a felony of the first degree.
(2) In the case of aggravated assault, from a felony of the third degree to a felony of the second degree.
(8) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.
(4) In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.

§ 784.082, Fla. Stat. (2007) (emphasis added); see also ch. 96-298, §§ 4, 8, Laws of Fla.

Although the term “detention facility” is undefined in chapter 784, “detention center or facility,” is defined in chapter 985, which is titled “Juvenile Justice; Interstate Compact on Juveniles,” to mean:

a facility used pending court adjudication or disposition or execution of court order for the temporary care of a child alleged or found to have committed a violation of law. A detention center or facility may provide secure or nonsecure custody. A facility used for the commitment of adjudicated delinquents shall not be considered a detention center or facility.

§ 985.03(19), Fla. Stat. (2007); see also § 984.03(19), Fla. Stat. (2007) (supplying the same definition for “detention center or facility”). By its own terms, the “detention center or facility” definition appearing in both chapters 984 and 985 is limited to each respective chapter. See § 984.03, Fla. Stat. (2007) (<cWhen used in this chapter... .”); § 985.03, Fla. Stat. (2007) (“As used in this chapter.... ”).

In construing section 784.082, we begin with the actual language in the statute because “legislative intent is determined primarily from the statute’s text.” See Heart of Adoptions, Inc., 963 So.2d at 198. In Koile v. State, 934 So.2d 1226 (Fla.2006), we explained:

When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.

Id. at 1230-31 (quoting Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64-65 (Fla.2005) (internal citation omitted)). Courts are “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)).

Section 784.082 applies to a “person,” i.e., adults as well as juveniles. § 784.082, Fla. Stat. (2007). Further, the detainee must be detained in a “prison, jail, or other detention facility.” § 784.082, Fla. Stat. (2007) (emphasis added). We find the statute clear and unambiguous, and thus, the statute’s plain and ordinary meaning controls. The plain and ordinary meaning of “detention facility” must undoubtedly include the temporary detention of juveniles in juvenile detention centers “pending court adjudication or disposition or execution of court order for the temporary care of a child alleged or found to have committed a violation of law.” See § 985.03(19), Fla. Stat. (2007). This construction is also in keeping with the Legislature’s use of the term “jail.” A “jail” is a detention center used by local governments for persons who are awaiting trial or have been convicted of misdemeanors. See Black’s Law Dictionary 910 (9th. ed. 2009).

This interpretation does not lead to an unreasonable result or a result clearly contrary to legislative intent where the Legislature intended to make penalties more severe when assaults and batteries are committed in jails, prisons, or other detention facilities. Conversely, construing the statute as to exclude juvenile detention centers would clearly limit its “reasonable and obvious implications.” See Holly, 450 So.2d at 219. By not limiting section 784.082 to only jails and prisons, the Legislature intended to expand the facilities subject to the statute. Had the Legislature intended to exclude juvenile detention centers from the scope of section 784.082, it would have said so. See Am. Bankers Life Assurance Co., 212 So.2d at 778 (“Had the legislature intended the statute to import a more specific and definite meaning, it could easily have chosen words to express any limitation it wished to impose.”).

Furthermore, the trial judge recognized that chapter 96-293, which created section 784.082, included “juvenile crime” in the preamble. Ch. 96-293, preamble, § 4, Laws of Fla. This legislative statement to address juvenile crime supports our conclusion that the plain and ordinary meaning of “detention facility” encompasses juvenile detention centers. See Holly, 450 So.2d at 219 (“The preamble and language of [an] enactment readily reveal[s] the legislature’s intent and its policy reasons.”).

Related Statutory Provisions

Even assuming arguendo that we were required to resort to rules of statutory construction to ascertain the legislative intent, our conclusion — that section 784.082 applies to juvenile detention centers — remains the same. “The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.” Fla. Dep’t of State v. Martin, 916 So.2d 763, 768 (Fla.2005). For this analysis, we discuss three other battery statutes contained in chapter 784. See §§ 784.076, 784.085, 784.078, Fla. Stat. (2007).

Pursuant to section 784.076, “A juvenile who has been committed to or detained by the Department of Juvenile Justice pursuant to a court order, who commits battery upon a person who provides health services commits a felony of the third degree. ...” § 784.076, Fla. Stat. (2007) (emphasis added). Exactly one year after the enactment of section 784.076 — which was expressly restricted to juveniles — the Legislature, in enacting section 784.082, decided against being so restrictive by using the word “person.” See ch. 95-267, § 57, Laws of Fla. In addition, the Legislature excepted children from being prosecuted under section 784.085, which states that “any person, except a child ... [who] knowingly cause[s] or attempts] to cause a child to come into contact with” certain fluids or materials thereby commits a battery of a child, a third-degree felony. § 784.085(1),(2), Fla. Stat. (2007) (emphasis added).

Under section 784.078, Florida Statutes (2007), the battery of a facility employee, a third-degree felony, occurs when

any person, while being detained in a facility and with intent to harass, annoy, threaten, or alarm a person in a facility whom he or she knows or reasonably should know to be an employee of such facility ... cause[s] or attempts] to cause such employee to come into contact with [specified fluids or materials].

§ 784.078(3)(a), (b), Fla. Stat. (2007) (emphasis added). In the same statute, the Legislature defined the type of facilities as:

a state correctional institution defined in s. 944.02(6); a private correctional facility defined in s. 944.710 or under chapter 957; a county, municipal, or regional jail or other detention facility of local government under chapter 950 or chapter 951; or a secure facility operated and maintained by the Department of Corrections or the Department of Juvenile Justice.

§ 784.078(1), Fla. Stat. In section 784.082, the Legislature did not find it necessary to define “other detention facility.” Unlike the statutes referred to above, the Legislature did not indicate in section 784.082 that it should have limited application. Our conclusion that the Legislature intended for section 784.082 to apply to juvenile detention centers is confirmed when reading section 784.082 in pan materia with other battery statutes found in chapter 784.

Rule of Lenity

Hopkins relies on the rule of lenity in support of his position that section 784.082 does not include juvenile detention centers. The rule of lenity, codified in section 775.021(1), Florida Statutes (2007), provides that, “[t]he provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla. Stat. (2007). Because section 784.082 is unambiguous and not subject to differing reasonable constructions, we conclude that the rule of lenity is inapplicable. See Nettles v. State, 850 So.2d 487, 494 (Fla.2003).

CONCLUSION

We therefore approve the Fourth District’s decision in Hopkins, and disapprove the First District’s decision in T.C.

It is so ordered.

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

      . Section 784.082 provides: "Whenever a person who is being detained in a prison, jail, or other detention facility is charged with committing ... a battery ... upon any visitor to the detention facility or upon any other detainee in the detention facility,” such offense shall be reclassified as a third-degree felony. § 784.082, Fla. Stat. (2007).

      . The trial judge found that there were no other district court decisions on point other than T.C. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) ("[I]n the absence of interdis-trict conflict, district court decisions bind all Florida trial courts.”).

      . The Fourth District in J.A. remanded the case so that the disposition order could properly state that the adjudication of delinquency occurred after a hearing, instead of a guilty plea. 743 So.2d at 601. Because there was a scrivener’s error contained in the disposition order in J.A.D., the district court remanded the case for correction thereof. 855 So.2d at 1199.

      .In T.C., the First District reversed a juvenile’s adjudication of delinquency for battery by detainee which occurred while the juvenile was detained in a juvenile detention center. 852 So.2d at 276. The First District found that "[njothing in section 784.082 indicate[d] that the statute applie[d] to juveniles held in juvenile facilities.” Id.

      . Unlike in section 784.082, the Legislature opted to include the specific references to sections 984.03 and 985.03 in section 784.075:
      A person who commits a battery on a juvenile probation officer, as defined in s. 984.03 or s. 985.03, on other staff of a detention center or facility as defined in s. 984.03(19) or s. 985.03, or on a staff member of a commitment facility as defined in s. 985.03, commits a felony of the third degree .... For purposes of this section, a staff member of the facilities listed includes persons employed by the Department of Juvenile Justice, persons employed at facilities licensed by the Department of Juvenile Justice, and persons employed at facilities operated under a contract with the Department of Juvenile Justice.
      § 784.075, Fla. Stat. (2007) (emphasis added). Notably, section 784.075 went into effect on May 15, 1993, and therefore, prior to the Legislature’s enactment of section 784.082. See ch. 93-230, § 13, Laws of Fla.

      . "Health services” under section 784.076 is defined as "preventive, diagnostic, curative, or rehabilitative services and includes alcohol treatment, drug abuse treatment, and mental health services.” Id.