author: WELCH, Judge.

text:
    A.Z. v. STATE of Alabama
    CR-15-0815
    Court of Criminal Appeals of Alabama.
    April 28, 2017 Rehearing Denied June 30, 2017 Certiorari Denied August 11, 2017
    Alabama Supreme Court 1160904
    Thomas Jefferson Deen III, Mobile, for appellant.
    Luther Strange, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellee.
   WELCH, Judge.

A.Z. was adjudicated a youthful offender upon pleading guilty to four offenses. In addition to a sentence of incarceration-which was suspended-fines, and court costs, A.Z. paid, upon his seeking bail, a $35 bail-bond-filing fee, pursuant to § 12-19-311(a)(1)a, Ala. Code 1975. Upon his disposition as a youthful offender, A.Z. was ordered to pay a $700 bail-bond fee, pursuant to § 12-19-311(a)(1)b, Ala. Code 1975.

Prior to his April 4, 2016, guilty-plea hearing, A.Z. preserved and reserved the issues that follow for appellate review.

A.Z. presents on appeal several claims challenging the constitutionality of the "bail-bond-fees" statute set forth in § 12-19-311, Ala. Code 1975.

An appellate court's " 'review of constitutional challenges to legislative enactments is de novo.' " State v. Adams, 91 So.3d 724, 732 (Ala. Crim. App. 2010) (quoting Richards v. Izzi, 819 So.2d 25, 29 n.3 (Ala. 2001) ).

I.

A.Z. contends that the bail-bond fee set forth in § 12-19-311(a)(1)b., Ala. Code 1975, does not apply to youthful-offender adjudications. Paragraphs a and b of § 12-19-311(a)(1), Ala. Code 1975, assess separate costs to obtaining a bail. Paragraph a assesses what the statute terms as a "filing fee" of $35 "on each bond executed." Paragraph b assesses what the statute terms a "bail-bond fee" and is colloquially often called "the back-end fee" because it is "imposed by the court when the defendant appears in court for adjudication or sentencing." § 12-19-311(e)(1), Ala. Code 1975. A.Z. challenges paragraph b, the back-end fee. Specifically, according to A.Z., the "bail-bond-fees" statute explicitly states that the fee in paragraph b applies to misdemeanors and felonies, but the statute does not explicitly state that it applies to youthful offenders.

"(a)(1) In addition to all other charges, costs, taxes, or fees levied by law on bail bonds, additional fees as detailed in ... paragraph b. shall be imposed on every bail bond in all courts of this state.
"... The fees shall be assessed as follows:
"a. ....
"b. For a misdemeanor offense, a bail bond fee in the amount of 3.5 percent of the total face value of the bail bond or one hundred dollars ($100), whichever is greater, but not to exceed four hundred fifty dollars ($450). For a felony offense, a bail bond fee of 3.5 percent of the total face value of the bail bond or one hundred fifty dollars ($150), whichever is greater, but not to exceed seven hundred fifty dollars ($750). Except that if a person is released on a judicial public bail, recognizance, or signature bond, including a bond on electronic traffic and nontraffic citations, the fee shall be affixed at twenty-five dollars ($25). For purposes of this section, face value of bond shall mean the bond amount set by court or other authority at release, not the amount posted at release on bail."

A.Z. asserts that a youthful-offender adjudication is not a conviction for a crime;

thus, according to A.Z., it is not a misdemeanor or a felony. A.Z. argues that, if the legislature had intended the bail-bond fee assessed in paragraph b to apply to youthful offenders, it would have so stated in paragraph b. In response, the State argues on appeal that § 12-19-311(a)(1) clearly states that the fee set forth in paragraph b applies to "every bail bond in all courts of this state," and, according to the State, this fee is imposed without regard to the offender's age or the degree of culpability assigned to the criminal offense.

A.Z. cites S.T.E. v. State, 954 So.2d 604 (Ala. Crim. App. 2006), as support for the proposition that the bail-bond fee does not apply to youthful offenders. S.T.E. held that

"fees imposed by the Drug Demand Reduction Act (§ 13A-12-281), and fees assessed for the Alabama Forensic Services Trust Fund (§ 36-18-7) were held inapplicable to a youthful-offender adjudication because neither statute explicitly stated that the penalty or fee is to be imposed on youthful offenders or on adjudications under the Youthful Offender Act."

(A.Z.'s brief, p. 10.) A.Z. argues that there is no difference between the bail-bond fee and the Alabama Forensic Services Trust Fund fee and that, thus, this Court should follow S.T.E. and hold that the bail-bond fee does not apply to youthful offenders. The State responds by arguing that A.Z.'s reliance on S.T.E. is misplaced because S.T.E. did not address bail or bonds.

This Court concludes that the Alabama Forensic Services Trust Fund fee, § 36-18-7, Ala. Code 1975, and the monetary penalty imposed by the Demand Reduction Assessment Act, § 13A-12-281, Ala. Code 1975, discussed in S.T.E. are distinguishable from the bail-bond fee in paragraph b. Both the Alabama Forensic Services Trust Fund fee and the Demand Reduction Assessment Act monetary penalty are mandatory penalties imposed in addition to other fines and penalties following a conviction for certain drug offenses. See Hall v. State, 223 So.3d 977, 982 (Ala. 2016) ("[T]he demand-reduction assessment is a 'mandatory' fine that is capable of being waived."); Vann v. State, 880 So.2d 495, 501 (Ala. Crim. App. 2003) (noting that the Alabama Forensic Services Trust Fund "mandates that 'there shall be imposed or assessed an additional fee of one hundred dollars" on certain drug offenses). Thus, S.T.E. discusses both the Alabama Forensic Services Trust Fund fee and the Demand Reduction Assessment Act penalty in terms of the penal nature of those statutes, i.e., the imposition of additional punishment, and then states:

" ' "[Penal] statutes are to reach no further in meaning than their words." ' Fuller v. State, 257 Ala. 502, 505, 60 So.2d 202, 205 (1952). ' " 'No person is to be made subject to [penal statutes] by implication, and all doubts concerning their interpretation are to predominate in favor of the accused.' " ' Fuller, 257 Ala. at 505, 60 So.2d at 205 (quoting Scott v. State, 152 Ala. 63, 64, 44 So. 544, 545 (1907) (quoting in turn Bishop on Statutory Crimes § 194))."

S.T.E. v. State, 954 So.2d 604, 607-08 (Ala. Crim. App. 2006). S.T.E. concludes that, as penal statutes, "[b]ecause § 13A-12-281 and § 36-18-7 do not explicitly apply to youthful offenders, the trial court should not have imposed either penalty on S.T.E." S.T.E., 954 So.2d at 608.

A.Z.'s reliance on S.T.E. is misplaced because S.T.E. discusses penal statutes, and the nature of the bail-bond fee in paragraph b is not penal. The bail-bond fee is a cost associated with obtaining bail. It is not imposed unless a defendant seeks and obtains bail and the adjudication is something other than not guilty. Thus, unlike S.T.E., A.Z. is not challenging the application of a penal statute; thus, S.T.E. does not control this case.

Moreover, the Forensic Services Trust Fund Statute states that it imposes "an additional fee of one hundred dollars ($100) on any conviction in any court of the state for drug possession, drug sale, drug trafficking, and drug paraphernalia offense as defined in Sections 13A-12-211 to 13A-12-260, inclusive." § 36-18-7(a), Ala. Code 1975 (emphasis added). The Demand Reduction Assessment Act also imposes an additional penalty for those defendants "convicted of a violation" of certain drug offenses set forth in the Act. See § 13A-12-281(a), Ala. Code 1975 (emphasis added). Because the Demand Reduction Assessment and the Forensic Services Fee specifically state that they apply only to convictions, and A.Z. correctly states that a youthful-offender adjudication is not a conviction, those additional assessments could not apply following a youthful-offender adjudication.

The bail-bond-fees statute in § 12-19-311(e)(1), Ala. Code 1975, states that the bail-bond fee assessed in paragraph b is assessed when the defendant appears for adjudication:

"The fee imposed on bail bonds under paragraph b. of subdivision (1) of subsection (a) shall be assessed to the defendant and be imposed by the court when the defendant appears in court for adjudication or sentencing.''

(Emphasis added.) The disposition following a youthful-offender hearing is an adjudication. The statute does not limit its application to a conviction. It applies equally to an adjudication. An "adjudication" is defined as "the process of judicially deciding a case." Black's Law Dictionary 50 (10th ed. 2014). Thus, by use of the word "adjudication" and not "conviction," the bail-bond statute was drafted broadly to include youthful offenders.

Additionally, contrary to A.Z.'s appellate argument that paragraph b states that the bail-bond fee applies following a conviction, paragraph b states that the fee applies to a "misdemeanor offense" and to a "felony offense." An offense is defined as a "violation of the law" and may be a misdemeanor or a felony. A "conviction" is defined as: "finding someone guilty of a crime; the state of having been proved guilty." "An adjudication of youthful offender status is very different from conviction as an adult, because it is not deemed a conviction of crime at all." Gordon v. Nagle, 647 So.2d 91, 95 (Ala. 1994). " 'The Youthful Offender Act is intended to extricate persons below twenty-one years of age from the harshness of criminal prosecution and conviction.' "

Gordon v. Nagle, 647 So.2d at 95 (quoting Raines v. State, 294 Ala. 360, 363, 317 So.2d 559, 561 (1975) ). Use of the word "offense" in the bail-bond-fee statute allows for a broader application than had the statute used the word "conviction." A youth tried as a youthful offender and found to have committed the underlying charged criminal offense has not been convicted of a crime. The youth is adjudicated to be a youthful offender and is punished accordingly. In other words, a youth who is charged with committing a misdemeanor or a felony and who is granted youthful offender status, and is found guilty by a trial court of committing the charged offense is not convicted of a crime, but is adjudicated to be a youthful offender and is punished according to the youthful-offender statute, which has the goal of rehabilitating the youth more than punishing the youth. Therefore, because the bail-bond-fee statute uses the word "offense," rather than "conviction," the statute is broader in scope and encompasses youthful-offender adjudications.

Finally, § 12-19-313 confirms that the bail-bond fee is not limited to "convictions." Section 12-19-313 states that the fee in paragraph b is assessed when the "the charge is disposed."

"[W]herein the charge against a defendant is disposed of by conviction, a finding of guilty, or dismissal or nolle prosequi upon conditions to pay costs and fees, the fees pursuant to paragraph b. of subdivision (1) of subsection (a) of Section 12-19-311 shall be assessed. If the defendant is admitted to a pretrial diversion program or to a specialty court program, the fee shall be assessed as with other court costs and fees."

This Court has referred to youthful-offender status as being "found guilty under the Youthful Offender Act," Bemis v. State, 589 So.2d 788, 788 (Ala. Crim. App. 1991) ; as being "nol-prossed," see C.R.M. v. State, 646 So.2d 1390, 1391 (Ala. Crim. App. 1994) ; and being subject to "specialty court treatment," see § 15-19-6(d), Ala. Code 1975 ("If the underlying charge is a misdemeanor, a person adjudged a youthful offender may be given correctional treatment as provided by law for such misdemeanor."); § 15-18-171(6), Ala. Code 1975 (youthful offenders are eligible under the community punishment and corrections program for "[a]ny program designed as an alternative to incarceration ... which may be imposed as part of a sanction, including, but not limited to confinement, work release, day reporting, home detention, restitution programs, community service, education and intervention programs, and substance abuse programs"). Thus, § 12-19-313, Ala. Code 1975, is authority supporting that the back-end bail-bond fee applies to youthful-offender adjudications.

For the foregoing reasons, this Court finds no error with the circuit court's assessment of $700 imposed pursuant to the back-end bail-bond fee as set forth in § 12-19-311(a)(1) b., Ala. Code 1975.

II.

A.Z. contends that § 12-19-311, Ala. Code 1975, entitled "Bail Bond Fees" is unconstitutional because, he says, it was unconstitutionally enacted.

A.

A.Z. contends that § 12-19-311, Ala. Code 1975, is unconstitutional because, he says, it violates the single-subject restriction of Art. IV, § 45, Ala. Const. 1901.

Section 45 states:

"The style of the laws of this state shall be: 'Be it enacted by the legislature of Alabama,' which need not be repeated, but the act shall be divided into sections for convenience, according to substance, and the sections designated merely by figures. Each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length."

Specifically, A.Z. contends that § 12-19-311 has multiple subjects because it distributes funds to the solicitor's fund (district attorney's) and to the court clerk's fund. This, A.Z. argues, impermissibly provides for the distribution of funds to two branches of government-the executive branch and the judicial branch.

Section 12-19-311(a)(1) a., Ala. Code 1975, imposes "[a] filing fee in the amount of thirty-five dollars ($35) on each bond executed." Section 12-19-311(f), Ala. Code 1975, governs the disbursement of those funds.

"The court clerks shall distribute on a monthly basis as other fees are distributed, the fees collected pursuant to paragraph a. of subdivision (1) of subsection (a) as follows: Ten percent from each fee shall be distributed either to the county general fund to be earmarked and distributed to the Sheriff's Fund, administered by the sheriff, in the county where the bond was executed or, where the bond is executed by the municipality, to the municipality; 45 percent of the fee to the court clerk's fund where the bond was executed or where the bond is executed by the municipal court, to the municipality; 45 percent of the fee to the Solicitor's Fund in the county where the bond was executed. The bail bond fee records shall be audited by the Department of Examiners of Public Accounts."

§ 12-19-311(f), Ala. Code 1975.

Section 12-19-311(a)(1)b, Ala. Code 1975, imposes a "back-end" fee following disposition of charges not resulting in an acquittal. The fee is a percentage of the value of the bail bond, as quoted previously in this opinion.

Section 12-19-311(g), Ala. Code 1975, governs the disbursement of funds collected from the bail-bond filing fee in paragraph b.

"(g) The court clerks shall distribute on a monthly basis as other fees are distributed, the fees collected pursuant to paragraph b. of subdivision (1) of subsection (a) as follows: Twenty-one dollars and fifty cents ($21.50) from each fee shall be distributed to the county general fund which shall be earmarked and distributed to the Sheriff's Fund, administered by the sheriff, in the county where the bond was executed or, where the bond was executed by a municipality, to the municipality; 40 percent of the remainder of the fee to the court clerk's fund where the bond was executed or where the bond is executed by the municipal court, to the municipality; 45 percent of the remainder of the fee to the Solicitor's Fund in the county where the bond was executed; five percent to the State General Fund and ten percent to the Alabama Forensic Services Trust Fund. The bail bond fee records shall be audited by the Department of Examiners of Public Accounts."

§ 12-19-311(g), Ala. Code 1975.

" 'The constitution is satisfied if the act has but one general subject, and that is fairly indicated by the title.' Lindsay v. United States Savings & Loan Association, [120 Ala. 156, 24 So. 171 (1898) ]." Johnson v. Robinson, 238 Ala. 568, 572-73, 192 So. 412, 415 (1939).

"The language of the Constitution, 'Each law shall contain but one subject, which shall be clearly expressed in its title,' contemplates that in its application the court must not only look at the title but must consider the body of 'Each law' in ascertaining the subject thereof; and if 'the title and the body of the act, construed together, show a single purpose, and relate to a single subject,' and the grant of power is germane to that subject, such act does not offend the Constitution. Judson v. City of Bessemer, 87 Ala. 240, 6 So. 267, 4 L.R.A. 742."

Johnson v. Robinson, 238 Ala. 568, 573, 192 So. 412, 415 (1939).

Act No. 2012-535, Alabama Acts 2012 (H.B. 688) ("The Act"), approved May 22, 2012, was codified as § 12-19-311, Ala. Code 1975. Its short title is "Courts-Actions and Proceedings-Fees," but its comprehensive title stating its purpose is:

"[T]o increase the docket fees in certain civil and criminal cases in the circuit, district, and municipal courts in this state; to provide for distribution of the revenue; to provide for bail bond fees in certain amounts; to exempt bonds for certain traffic violations from the fees; to require the defendant to pay the fees; to provide for the clerks of the various courts to collect the fees; and to provide for distribution of the fees."

In Magee v. Boyd, 175 So.3d 79 (Ala. 2015), the Alabama Supreme Court stated:

" ' "[A] statute has but one subject, no matter to how many different matters it relates if they are all cognate, and but different branches of the same subject." ' Ex parte Hilsabeck, 477 So.2d 472, 475 (Ala.1985) (quoting Knight v. West Alabama Envtl. Improvement Auth., 287 Ala. 15, 22, 246 So.2d 903, 908 (1971) ).
" ' "It is settled under our decisions that however numerous the subjects stated in the title, and however numerous the provisions in the body of the act may be, if they can be by fair intendment considered as falling within the subject-matter legislated upon in the act, or necessary as ends and means to the attainment of such subject, the act does not offend our constitutional provision that no law shall embrace more than one subject, which must be expressed in its title."
" Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 10, 18 So.2d 810, 816 (1944) (quoting State v. Henry, 224 Ala. 224, 227, 139 So. 278, 281 (1931) (emphasis added))."

Magee v. Boyd, 175 So.3d at 119.

The comprehensive subject gleaned from the title and executed in the body of the Act is to provide for bail-bond fees in certain amounts and in certain cases and to provide a procedure for collecting those fees and a plan for distributing the revenue generated from those fees. These different matters are "different branches of the same subject" and are all linked in that they are involved in the functioning of the judicial system. Magee v. Boyd, 175 So.3d at 119.

Therefore, the disbursement of court revenue to the court clerk's fund and the solicitor's fund does not violate § 45, because both entities are involved in the functioning of the Alabama court system; thus, "they can be by fair intendment considered as falling within the subject-matter legislated upon in the act." Magee v. Boyd, 175 So.3d at 119.

This Court can find no violation of § 45 as argued by A.Z.

B.

A.Z. contends on appeal that the Act is unconstitutional because the title does not reflect the content of the bill, in violation of § 45, Ala. Const. 1901. This specific assertion was not made in the circuit court and is thus not preserved. See McKinney v. State, 654 So.2d 95, 99 (Ala. Crim. App. 1995) ; McKinney v. State, 654 So.2d 95, 99 (Ala. Crim. App. 1995) ; Ex parte Frith, 526 So.2d 880, 882 (Ala. 1987) ; Griffin v. State, 591 So.2d 547, 550 (Ala. Crim. App. 1991). However, this issue was actually addressed and decided adversely to A.Z. in this Court's discussion in Part II.A of this opinion.

C.

In his appellate brief, A.Z. also makes the following contentions: 1) The statute has multiple subjects and, thus, violates § 45 because it distributes funds to various levels of government-municipal and county. 2) The statute contains multiple subjects in violation of § 45 because it assesses both a "front-end" administrative fee and a "back-end" posttrial penalty in the form of a fine based on the amount of bond required. In the circuit court, A.Z. asserted in his written motion that the "back-end" bail-bond fee set forth in paragraph (a)(1)b violates Ala. Const. 1901, Art. I, § 15, which prohibits the imposition of excessive fines. He did not argue that this statutory provision violated § 45. 3) The Act is unconstitutional because, he says, it includes a $2.00 allocation to the Police Officer's Annuity Fund, see § 12-19-310, Ala. Code 1975, which is a retirement fund for police officers, and this allocation has nothing to do with the court system.

These claims were not presented to the circuit court. "[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof." McKinney v. State, 654 So.2d 95, 99 (Ala. Crim. App. 1995). "The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial." Ex parte Frith, 526 So.2d 880, 882 (Ala. 1987). Additionally, "[a] defendant is bound by the grounds of objection stated at trial and may not expand those grounds on appeal." Griffin v. State, 591 So.2d 547, 550 (Ala. Crim. App. 1991). Therefore, these claims are waived from appellate review.

III.

A. & B.

A.Z. contends that the bail-bond fee is unconstitutional because, he says, it creates incentives for the district attorneys to recommend a higher bond because the district attorneys' offices get a percentage of the bail-bond fee. This, according to A.Z., is a violation of the defendant's right to be released on bail. Additionally, A.Z. contends that the bail-bond fee creates an improper financial incentive for the district attorneys to seek convictions because the fee is assessed and collected after a conviction. Thus, according to A.Z., a prosecutor's duty to impartially administer justice cannot coexist where financial gain is the prosecutor's motive in obtaining convictions. This, according to A.Z., is a violation of a defendant's due-process rights.

These two issues concern the bail-bond fee set forth in § 12-19-311(a)(1)b, Ala. Code 1975. A.Z.'s argument is not persuasive.

Article I, § 16, Alabama Constitution of 1901, provides:

"That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required."

"[T]he amount of bail is discretionary, to be set by the court." Ex parte Colbert, 717 So.2d 868, 871 (Ala. Crim. App. 1998). Rule 7.2, Ala. R. Crim. P., sets forth a bail schedule as a guide in setting an appropriate bail. That rule states that it is

"a general rule for circuit, district, and municipal courts in setting bail for persons charged with bailable offenses. Except where release is required in the minimum schedule amount pursuant to the Rules of Criminal Procedure, courts should exercise discretion in setting bail above or below the scheduled amounts."

Rule 7.2(b), Ala. R. Crim. P. The trial court may consider factors provided in Rule 7.2(a), Ala. R. Crim. P., and any additional factors when determining an appropriate bail amount. The prosecutor may, as with any issue before the court, present arguments on behalf of the State that he or she deems relevant under the circumstances. However, the district attorney does not set the amount of a defendant's bail.

Moreover, § 12-19-311(a)(1) b provides that the bail-bond fee for a misdemeanor charge shall not exceed $450.00 and the bail-bond fee for a felony shall not exceed $750.00. These limits on the fee protect a defendant from the concerns set forth by A.Z. Additionally, a defendant dissatisfied with the total bail amount, upon which the fee is calculated, may challenge the alleged excessiveness of bail by a writ of habeas corpus. Clay v. State, 561 So.2d 1116, 1118 (Ala. Crim. App. 1990) ; Burks v. State, 600 So.2d 374, 381 (Ala. Crim. App. 1991).

Conclusion

Therefore, the circuit court's judgment adjudicating A.Z. a youthful offender is affirmed for the reasons set forth above.

AFFIRMED.

Windom, P.J., and Kellum, Burke, and Joiner, JJ., concur.

      Although neither A.Z. nor the circuit court used the word "reserve," the record clearly reflects that the circuit court understood that A.Z. intended to reserve for challenge on appeal the denial of his objection to the imposition of a bail-bond fee. See Ex parte Mullins, 920 So.2d 589, 589-90 (Ala. 2005) (holding that an appellant may clearly express his intention to appeal an issue, and thereby reserve the issue, without expressly using the word "reserve"); Treslar v. State, 948 So.2d 570 (Ala. Crim. App. 2005) ("[T]he trial court understood Treslar was reserving the right to appeal the denial of her motion from the notation on the guilty-plea form, which the judge signed, and the attached plea-agreement sheet, which contained the notation of Treslar's reservation of the right to appeal the denial of the motion.").

      Alabama's Youthful Offender Act is found in §§ 15-19-1 through 15-19-7, Ala. Code 1975.

      Walker v. State, 137 So.3d 943 (Ala. Crim. App. 2013) (noting that the bail-bond fee in paragraph b applies only when the defendant is released on bail).

      See Ex parte T.B., 698 So.2d 127 (Ala. 1997) (recognizing that an adjudication of youthful-offender status is not a conviction); Gordon v. Nagle, 647 So.2d 91, 95 (Ala. 1994) ("An adjudication of youthful-offender status is very different from conviction as an adult, because it is not deemed a conviction of a crime at all."); see also Ex parte Thomas, 435 So.2d 1324 (Ala. 1982) (holding that an adjudication of youthful offender may not be considered a prior felony conviction under the Habitual Felony Offender Act).

      "Adjudication" is defined as: "1. The legal process of resolving a dispute; the process of judicially deciding a case. 2. Judgment." Black's Law Dictionary 50 (10th ed. 2014).

      Black's Law Dictionary 1250 (10th ed. 2014).

      Black's Law Dictionary 408 (10th ed. 2014).

      This Court notes for purposes of clarity that § 12-19-311, Ala. Code 1975, is entitled "Bail Bond Fees" and should not be confused with the actual or specific "bail-bond fee" assessed in paragraph b of § 12-19-311(a)(1), Ala. Code 1975.

      In 2013, § 12-19-311, Ala. Code 1975, was amended by Act No. 2013-193, Alabama Acts 2013 (S.B. No. 361). The title of the statute remained "Courts-Actions and Proceedings-Fees." Its purpose is stated as:
      "Enrolled, An Act, Relating to bail bond fees; to amend Section 2 of Act 2012-535, now appearing as Section 12-14-31 and Section 12-19-311 Code of Alabama 1975; to provide further for what acts constitute the same incident in cases where there are multiple charges; to extend the time in which the official executing the bond or the clerk of the court has to collect the bail bond fee; to authorize an additional contempt penalty in the municipal court for failure to pay the bail bond fee; and to repeal the expiration date of the bail bond fee."
      The amendment did not modify the existing purpose beyond the purpose of the original statute.

      Although Judge Kellum was not present when this case was orally argued, she listened to the tape of the oral argument held on October 4, 2016.


source: Caselaw Access Project

author: JOINER, Judge.

license: Public Domain

text:
    Larry SHEFFIELD v. STATE of Alabama
    CR-15-1467
    Court of Criminal Appeals of Alabama.
    June 9, 2017 Certiorari Denied August 11, 2017
    Alabama Supreme Court 1160839
    William Gregory Hughes, Mobile, for appellant.
    Luther Strange, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
    On Application for Rehearing
   JOINER, Judge.

This Court's opinion of March 17, 2017, is withdrawn, and the following is substituted therefor.

Larry Sheffield was convicted of murder, see § 13A-6-2, Ala. Code 1975, and was sentenced to life imprisonment. The circuit court ordered Sheffield to pay a $1,000 fine, a $1,603 crime victims compensation assessment, and court costs.

Facts and Procedural History

The State's evidence at trial tended to show that Sheffield shot and killed Jeffrey McMillian. On July 19, 2014, Kimberly Paige and Latitia Lamley were bartending and Cathy McCary and Alfred Bean of the musical duo "Al and Cathy" were performing at Trader's Bar, a nightclub in Baldwin County. Paige, Lamley, McCary, and Bean testified that McMillian, Sheffield, and Sheffield's wife, Sheila, were at Trader's that evening. Bean testified that, during a break in his performance, he sat down at the bar to speak with a friend. Bean observed Sheila sitting at the bar and McMillian standing next to her. Bean testified:

"I heard a-I would say a shouting. And I turned and it was-Mr. Sheffield was coming out of the bathroom and he-shouting. And I think-and what I say was he hit Mrs. Sheffield in the back of the head with a slap.
"....
"When I heard him shout, I turned. And he came over behind her and hit her in the back of the head (indicating) with his palm. And at that point, Mr. McMillian pushed him and said, 'What's your problem?' And Mr. Sheffield punched him back."

(R. 187.) Bean heard Sheffield tell Sheila "that she could get a ride home with him, meaning Mr. McMillian."

Hank Wilson, who went to Trader's on July 19, 2014, to see Al and Cathy perform, spoke with McMillian several times throughout the evening. At one point, he and McMillian went to the area of the bar where Sheila was sitting between two open spots. Wilson stood to Sheila's left, and McMillian stood to Sheila's right and began talking to her. Wilson then witnessed Sheffield-whom he identified in court-approach Sheila, slap her head, and pull her hair. Wilson heard Sheffield say to Sheila, "[Y]ou can fuckin' go home with him." Wilson saw Sheffield turn toward McMillian, say something that Wilson did not hear, and gesture toward McMillian with his finger before leaving Trader's.

Lamley saw Sheffield shove Sheila and say that he was ready to leave. Lamley testified:

"Jeff [McMillian] kind of sat there and talked to me for a little bit. I had just given him another beer, so he sat there and talked to me. And he couldn't believe that Mr. Sheffield punched him in the face.
"....
"He kind of just kept over-thinking the situation, and then he asked me to watch his beer, he was going to go downstairs. I said, 'Well, they have already left, just let it go.' I tried to get him to stay in the bar but he just was upset with the whole situation and felt like he needed to go talk to Mr. Sheffield."

(R. 153-54.)

Gwen Falkenberry, V.J. Autrey, Mike Smith, and Terri Smith were talking in the Trader's parking lot on July 19, 2014, when they each heard a "pop" that they assumed was a firecracker. Falkenberry "didn't think anything about it at the time" but when she turned to walk to her car, she saw McMillian lying on the ground and realized that the sound she heard was actually a gunshot. Falkenberry testified, "When I saw [McMillian] laying there, I ran-I ran over and I remember yelling and saying, 'What just happened? What did you just do?' And [Sheffield] said that he shot him and not to touch him. And then I turned around and screamed at my friends." Falkenberry testified that Mike then ran over and "went off on Mr. Sheffield." Falkenberry testified:

"[Mike] was yelling at [Sheffield], 'What did you just do? Why did you do this?' And then [Mike] was-um, he was-he was hitting on [Sheffield]. He was-
"And then, um, he, Mr. Sheffield, said, 'I just used this once'-and had the gun right there. Said, 'I just used it once, I'll use it again.' "

(R. 343.) Falkenberry, Autrey, Mike, and Terri testified that they did not hear an altercation prior to hearing the gunshot and that the conditions in the parking lot were such that they would have heard an altercation had one occurred. Falkenberry identified Sheffield in court as the person who admitted to shooting McMillian.

Investigator Richard Chenoweth with the Spanish Fort Police Department responded to the shooting. A .40 caliber Glock-brand semiautomatic pistol was recovered from Sheffield; no other weapon was recovered from the scene, and McMillian appeared to have been unarmed. Investigator Chenoweth transported Sheffield to the police station and informed him of his Miranda rights. Sheffield gave an audio-recorded statement, and the State played the recording for the jury. A summary of Sheffield's account of the incident follows:

Sheffield and Sheila arrived at Trader's between 9:30 and 10 pm on July 19, 2014. Throughout the evening, Sheffield observed McMillian speaking to several groups of people. Sheffield stated McMillian was "hitting on" and dancing with various women, and he believed McMillian was intoxicated. At one point, Sheffield stepped outside; when he returned, he saw McMillian "over there on top of" Sheila and assumed McMillian was drunkenly bothering her. Sheffield told McMillian to get away from his wife and said to Sheila, "Let's go, let's get out of here."
Sheffield left Trader's and was pulling his truck up to the entrance when McMillian came outside. Sheffield could not remember whether Sheila had made it to the truck, was walking down the entrance-way stairs, or had gone back inside Trader's at that time. Sheffield was outside the truck so he could help Sheila get into the truck when he realized McMillian was "hollering" that he was going to "beat my ass," but at that moment, Sheffield did not know to whom McMillian was referring. McMillian then descended the stairs, jumped on Sheffield, threw him against the truck, and started beating the top of his head. McMillian knocked Sheffield's glasses off and his dentures out of his mouth, breaking them. Sheffield could not get McMillian off him, so Sheffield pulled his .40-caliber Glock from his right side and attempted to "pistol whip" McMillian. Sheffield had his finger on the trigger while he struggled to unholster the gun, and he feared McMillian might try to wrestle the gun away from him. Sheffield had his hand on the handle while he swung the gun down in an attempt to get McMillian off him. During the altercation, the gun went off even though Sheffield had not intended to shoot McMillian. Sheffield initially thought he had not shot McMillian or that perhaps he had shot McMillian in the arm because McMillian "went away from" Sheffield, causing Sheffield to think McMillian had run away. McMillian twisted around and fell; McMillian did not move, and Sheffield saw blood and "couldn't believe it." Sheffield told Sheila and others to call emergency 911. A woman and a man approached, and the man pinned Sheffield to his truck and began hitting him until police arrived. Sheffield, who claimed he was in fear for his life, stated, "I thought I was acting in self-defense, ... the guy was beating the hell out of me. I'm an old man, I can't get out there and fist fight .... I didn't have no intention of shooting nobody." (State's Exhibit 84.)

Dr. Stacy Turner, a medical examiner with the Alabama Department of Forensic Sciences, testified as an expert in the field of forensic pathology. Dr. Turner, who performed the autopsy on McMillian's body on July 21, 2014, testified that McMillian died as a result of a gunshot wound to the head and that "the gun was pressed up against the skin at the time it was fired." Dr. Turner recovered a bullet fragment from McMillian during the autopsy.

In a hearing held outside the presence of the jury, the trial court considered the State's motion to introduce a recorded telephone conversation between Sheffield and Sheila under Rule 804(b)(3), Ala. R. Evid.-the statement-against-interest exception to the rule against hearsay. The State argued that because Sheila had invoked her spousal privilege, she was an unavailable witness, and, as Sheffield's wife, Sheila's statements against Sheffield's penal interest were therefore also contrary to Sheila's pecuniary and proprietary interest. In response, Sheffield argued, among other things:

"We don't see how the statement that he murdered somebody is against her pecuniary or proprietary interest. I mean, he doesn't have a job. If anything, him going off to prison could be within her pecuniary and proprietary best interest. She makes statements on there about wanting to divorce him and leave him. Those would be along the lines of wanting to get rid of somebody. They're certainly not against her interest to courier[sic] in her opinion."

(R. 623-24.)

The trial court allowed the State to admit the recording under Rule 804(b)(3), Ala. R. Evid., because, the court stated, Sheila was an unavailable witness, and a reasonable person would not want her spouse to be sentenced to prison. The court offered to issue an instruction with respect to Sheila's unavailability as a witness and Sheffield's lack of opportunity to cross-examine her, but Sheffield declined an instruction. The State played the recordings for the jury:

"SHEILA: Well, what caused the incident (unintelligible) then?
"SHEFFIELD: Say what?
"SHEILA: Huh? Alcohol? No. No. Not me. You were smoking a joint outside, and you, you turned your jealousy on some innocent soul, took his life, and now you're worried about your son? Okay.
"SHEFFIELD: Is he my son?
"SHEILA: Yes, he is.
"SHEFFIELD: Then what are you doing this to me for, then?
"SHEILA: I'm not going through this hell anymore, Larry. I am not going through it.
"SHEFFIELD: Ain't nobody done it to you, Sheila. All I done is ask you what's going on and you talking (unintelligible).
"SHEILA: What have you done? What have you done? You have hurt me. You have broken bones. You have killed innocent people. You have accused me of shit that I have not-
"SHEFFIELD: Sheila, the guy come down there. He come down there and jumped on me, Sheila. I was gone. I was through. I was through with him. You told me he went by me, I quit and left. That's-
"SHEILA: Larry, I know what happened. I know, I relive it every night in my dreams.
"SHEFFIELD: I do, too, Sheila.
"SHEILA: You're a guilty son of a bitch.
"SHEFFIELD: Sheila. Sheila.
"SHEILA: Guilty, guilty, guilty.
"SHEFFIELD: Sheila.
"SHEILA: I didn't cause it, you did.
"SHEFFIELD: Who says you did, Sheila?
"SHEILA: Who says I have to keep putting up with your crap? Who says I have to (unintelligible) with you anymore? Who says that? I don't have to take your fuckin' crap no more, Larry.
"SHEFFIELD: What crap are you talking about, Sheila? You (unintelligible).
"SHEILA: Your accusations. Me screwing my first cousin.
"SHEFFIELD: Sheila.
"SHEILA: I have never screwed nobody.
"SHEFFIELD: Well stop it then. (Unintelligible) talking like this.
"SHEILA: You know what-(unintelligible)-If you come home that's all I'm going hear, that's all I'm going hear (unintelligible).
"SHEFFIELD: I want you to be there when I come home. Me and you and (unintelligible).
"SHEILA: Well, I won't be. I won't be, Larry.
"SHEFFIELD: Why you gonna do that for?
"SHEILA: 'Cause you're a idiot. I don't trust you. I'm scared of you.
"....
"SHEILA: You think on why you're there. You don't comprehend the fact that you're in jail for taking a innocent person's life, Larry, much less wanting to--
"SHEFFIELD: You can't talk about it on the phone, Sheila. I can't talk about that kind of stuff on the phone. I only know it was self-defense, Sheila.
"SHEILA: I know what happened, the good Lord knows what happened.
"SHEFFIELD: I do, too. It was self-defense, Sheila.
"SHEILA: No it wasn't.
"SHEFFIELD: Sheila, it was. What did, what did Knizley[ ] say?
"SHEILA: Cold-blooded murder.
"SHEFFIELD: That ain't what Knizley said.
"SHEILA: Jealousy.
"SHEFFIELD: That ain't what Knizley said.
"SHEILA: I trust Knizley, and he said why, why did-"

(State's Exhibit 102.)

At the close of the State's evidence, Sheffield moved for a judgment of acquittal on the ground that the State failed to prove a prima facie case of murder. Specifically, Sheffield argued that the State failed to show that he intentionally caused McMillian's death because, Sheffield said, he was acting in self-defense. Moreover, he argued, there was evidence that McMillian's death was accidental. The trial court denied Sheffield's motion. At the close of the evidence, Sheffield renewed his motion for a judgment of acquittal, and the trial court again denied his motion. Sheffield was ultimately convicted of murder.

Discussion

On appeal, Sheffield raises several issues. Because we reverse Sheffield's conviction based on the trial court's error in admitting Sheila's statements into evidence, we do not address Sheffield's remaining claims.

Initially, we address the State's claim that, because Sheffield " 'expressly refuse[d] the offer of a curative instruction, any error [was] clearly invited.' Whitehead v. State, 777 So.2d 781, 829 (Ala. Crim. App. 1999)." (State's brief, p. 19.) The State argues that defense counsel's " 'refusal of the trial court's offer to give curative instructions prevents the defendant from receiving relief on appeal under certain circumstances.' Ex parte Thomas, 625 So.2d 1156, 1157-58 (Ala. 1993)." (State's brief, p. 19.) The circumstances of Sheffield's case, however, did not warrant a curative instruction from the trial court. The Supreme Court of Alabama stated in Thomas:

"[C]urative instructions are used primarily when an objection to prejudicial testimony is sustained; the instruction serves to eradicate the harmful effects of the inadmissible testimony. In such situations, the consistent actions of the trial court serve to totally nullify the effect of the testimony. Here, the overruling of the objection had the effect of communicating to the jury that the evidence was relevant and probative; any later inconsistent action by the trial court had at least the possibility of confusing the jury or reinforcing the inadmissible evidence in their minds."

625 So.2d at 1158 (emphasis in original).

Here, the trial court overruled Sheffield's objections and admitted Sheila's statements. Any instruction, therefore, would not have served to cure an error and would have been inconsistent with the trial court's earlier ruling-possibly confusing the jurors and reinforcing in their minds the evidence to which Sheffield was objecting. Accordingly, we cannot say that Sheffield invited any error when he declined the trial court's offer to issue a curative instruction.

A. Admissibility of Hearsay Statements

We turn now to whether the trial court erred when it admitted Sheila's statements under Rule 804(b)(3), Ala. R. Evid. "The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000) (citing Jennings v. State, 513 So.2d 91, 95 (Ala. Crim. App. 1987) ).

Rule 804(b)(3), Ala. R. Evid., provides:

"(b) Hearsay Exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
"....
"(3) STATEMENT AGAINST INTEREST. A statement which was at the time of its making so contrary to the declarant's pecuniary or proprietary interest that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."

The committee comments to Rule 804(b)(3), Ala. R. Evid., state:

"This subsection acknowledges the admissibility of a statement that was, at the time the statement was made, against the pecuniary or proprietary interest of the declarant. ...
"....
"The essence of the exception continues to be that the statement was against the interest of the declarant at the time the statement was made. In determining whether the facts satisfy the against-interest requirement, the judge considers the declarant to have the traits of a reasonable person. This is consistent with traditional Alabama law. See McCord v. State, 220 Ala. 466, 126 So. 873 (1930)."

"Proprietary statements are usually those against a property interest of the declarant. Statements against pecuniary interest are commonly those acknowledging indebtedness on the part of the declarant." C. Gamble, McElroy's Alabama Evidence, § 249.01(1)(b)(6th ed. 2009).

"Not just any statement against one's interest will qualify under [ Rule 804(b)(3), Ala. R. Evid.]. Rather, the statement must be so far against the interest of the declarant that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. As one leading commentator has observed: 'The interest involved must not be too indirect or remote.' Whether a statement is against interest constitutes a fact sensitive determination. Such facts are to be judged under a reasonable person standard.
"....
"Sometimes it will be absolutely clear that the declaration was against the declarant's pecuniary or proprietary interest. At other times, however, the question of whether the declaration is against one's pecuniary or proprietary interest is unascertainable from the declaration alone. In these latter cases the courts must look at surrounding circumstances in addition to the statement. A declarant's acknowledgment that he is a partner, for example, might be a declaration against interest if the partnership is insolvent but not if it is enjoying healthy solvency. The context of the statement may be highly relevant in determining whether it was a statement for or against the declarant's interest.
"In those instances where a statement could be for as well as against the declarant's pecuniary or proprietary interest, some courts have determined the status of the statement by asking whether the primary motive of the declarant, at the time the declarant made the statement, was to aid or derogate the declarant's own self-interest. Only if the against-interest motive predominates does the statement qualify."

C. Gamble, McElroy's Alabama Evidence, § 249.01(5)(6th ed. 2009).

This issue appears to be one of first impression; we can find no Alabama caselaw that speaks directly to whether a declarant's statements made against a spouse's penal interest may also be considered contrary to the declarant's own pecuniary or proprietary interest. The Oregon Court of Appeals, however, interpreted the admissibility of hearsay statements under a similar exception-OEC[ ] 804(3)(c)-in State v. Lyman, 107 Or. App. 390, 812 P.2d 23 (1991). OEC 804(3)(c), O.R.S. § 40.465, provides:

"The following are not excluded by ORS 40.455[ ] if the declarant is unavailable as a witness:
"....
"(c) A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made statements unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the person accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."

Lyman was charged with driving under the influence of intoxicants. Lyman's wife, Judy, asserted her marital privilege and did not testify at trial. The trial court admitted Judy's statements as having been made against her pecuniary interest. The Court of Appeals of Oregon set out the facts of the case:

"Officer Rothermund testified: He went to defendant's home to investigate a domestic disturbance at 4:05 p.m. Defendant appeared coming out of the bushes and acknowledged that he had been drinking. Ten or fifteen minutes later, Judy walked up to the house in a highly agitated state. She told the officer that she had just hidden their car[ ] so that defendant could not drive it. She said that she was tired of defendant's drinking and driving and that she had hidden the car for their own good. She explained that they had been fighting because defendant had failed to pay the rent on time. She said that she had seen the defendant driving at 3 p.m., while she was on the telephone to someone at Al-Anon, and she thought he was then intoxicated. Rothermund arrested defendant for driving under the influence. Defendant gave Judy some money before he left.
"Defendant objected to Judy's out of court statements, and the trial court stated:
" 'I'm sure that Mrs. Lyman was concerned about the rent money, as shown by the testimony as counsel for the defense has argued. I'm also sure she was kind of tired of her husband's drinking and driving, as she said to the officer. And then the question is whether she really said these things, appreciating the risk that he might be taken in for drinking and driving, or driving under the influence. Or whether she just wanted to resolve the immediate problem.
" 'I think as a trier of fact, we could from these circumstances find that she was concerned with both matters. That yes she was interested in the fate of the rent money but she was now so tired of his drinking and driving that she was willing to take the risk to tell the police officer regarding what happened, what her husband was doing, and in today's society, people know that there can be serious consequences from that, and this wouldn't be the first time, I'm sure, that someone in the position of the spouse is taking the tough-love approach, even though the results may be pecuniarily adverse, not only to the offending spouse but also to the spouse, mate's statements.
" 'On that basis, all of the statements recited by the officer will be received as evidence in this case. On the hearsay exception where the declarant is unavailable-[OEC] 804(3)(c).' "

107 Or. App. at 392-93, 812 P.2d at 24. In finding that Judy's statements were not admissible under OEC 804(3)(c), the court stated:

"This is the first case to address the exception for statements against pecuniary interest as it is formulated in OEC 804(3)(c). The Legislative Commentary to the rule explains that that kind of statement is reliable because people do not say things that are damaging to their interests, unless they believe that they are true. OEC 804(3)(c) incorporates the rationale into the rule by requiring the statement to be 'so far contrary to the declarant's ... interest ... that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true.' Compare Persad v. Kaiser Foundation Hospital, Inc., 106 Or. App. 615, 809 P.2d 706 (1991).
"The trial court implicitly found that defendant's and Judy's finances were interrelated. It found that Judy appreciated the risk that her statements exposed defendant to penal sanctions and reasoned that people know that there may be serious consequences of a conviction for driving under the influence of intoxicants. The question, however, is not merely whether she appreciated the risk, but whether a reasonable person in her position would consider the risk so great that she would not tell a lie. We conclude that, under the circumstances, the risk of pecuniary loss to Judy was too attenuated to ensure that the statements were reliable.
"A reasonable person's veracity is more likely to be affected by considerations of the primary effect of statements than by consideration of indirect effects. The primary effect here was to expose defendant to penal sanctions. Judy made the statements after having a fight with her husband that was of sufficient magnitude for the police to be called. She was angry at him for failing to pay the rent and upset[ ] because she thought he intended to drive when he was intoxicated. Pecuniary loss to defendant from the penal sanctions was only a secondary effect, and pecuniary loss to Judy because of her husband's loss was even further removed. The statements were not so far contrary to her pecuniary interests that a reasonable person in her position would not have said them if she believed that they were untrue."

107 Or. App. at 393-94, 812 P.2d at 25.

In a more recent decision, State v. Kaino-Smith, 277 Or. App. 516, 371 P.3d 1256 (2016), the Court of Appeals of Oregon held that a husband's statements accusing his wife of committing theft and forgery-the crimes for which she was being tried-were not admissible under OEC 804(3)(c) as statements against his pecuniary or proprietary interest. Kaino-Smith was prosecuted for stealing money from her employer, Jones. In her defense, Kaino-Smith claimed that she and her husband were Jones's business partners and, therefore, were also entitled to the company's funds. Kaino-Smith's husband, Smith, asserted his marital privilege and did not testify at trial. To counter Kaino-Smith's claim of partnership in Jones's business, the State introduced statements made during recorded telephone conversations in which "Smith and Jones repeatedly accused defendant of forging checks and stealing money, which, the state argued, indicated that neither of them believed that defendant had any right to the money that she took." 277 Or. at 520, 371 P.3d at 1259-60. The State argued that Smith's statements were admissible under OEC 804(3)(c) and indicated that it was offering the statements to rebut Kaino-Smith's defense theory that she was authorized to use the money. The Court stated:

"Before a hearsay statement may qualify as a statement against interest, there must be 'some evidence, or at least an inference which could be drawn from that evidence, which indicates that the declarant realized that the statements were against his pecuniary interest at the time they were made.' Reynoldson v. Jackson, 275 Or. 641, 645, 552 P.2d 236 (1976). That factual predicate is essential, because a statement against interest loses its reliability if the declarant did not appreciate the statement's potential detrimental impact. Kirkpatrick, Oregon Evidence § 804.04[3][a], 914.
"....
"... [Smith's] statements distancing himself from defendant's conduct and placing all blame at her feet cannot reasonably be considered to be against his interest. As such, his statements lack the reliability inherent in statements truly against interest, because a reasonable person may well have made those statements for reasons other than his or her belief that the statement was true."

Kaino-Smith, 277 Or. App. at 525-27, 371 P.3d at 1262-63.

Turning to the instant case, we question: (1) whether Sheila's primary motive at the time of making the statements against Sheffield's penal interest was to hurt or to help her own pecuniary or proprietary interest; and (2) whether the risk to Sheila's interests was so great as to make her statements inherently reliable. The State generally argued only that Sheila, as Sheffield's wife, had a "pecuniary and proprietary interest in his acquittal." Sheffield argued that Sheila would actually benefit from his possible conviction and prison sentence and referenced Sheila's intent to divorce Sheffield-which was evident from the recordings-following the trial. The trial court ruled that a reasonable person would not want her spouse to be convicted and sentenced to prison.

With respect to Sheila's motive, the record gives no indication that Sheila's statements were, at the time of their making, against her pecuniary or proprietary interest. We cannot say that Sheila's motive in making the statements was "so contrary to her pecuniary interests that a reasonable person in her position would not have said them if she believed that they were untrue." Lyman, 107 Or. App. at 393, 812 P.2d at 25.

With respect to the risk to Sheila's interests, the primary effect of Sheila's statements was to expose Sheffield to criminal punishment. Any pecuniary or proprietary loss to Sheffield would have been indirect, and any such loss to Sheila would have been even more remote. Therefore, we cannot say that a reasonable person in Sheila's situation would have considered the risk to her pecuniary or proprietary interest so great or so direct that she would not lie. Under the circumstances of this case, the risk of loss to Sheila was too attenuated to ensure that her statements were inherently reliable. Accordingly, the trial court abused its discretion when it admitted Sheila's statements under Rule 804(b)(3), Ala. R. Evid.

B. Harmless-Error Analysis

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

"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."

This Court has stated:

" ' "[B]efore the reviewing court can affirm a judgment based upon the 'harmless error' rule, that court must find conclusively that the trial court's error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant." Ex parte Crymes, 630 So.2d 125, 126 (Ala. 1993) (emphasis omitted [in Casey ] ).' "

Frye v. State, 185 So.3d 1156, 1166-67 (Ala. Crim. App. 2015) (quoting Ex parte Casey, 889 So.2d 615, 621-22 (Ala. 2004) ).

Under the facts of this case, we cannot say that the erroneous admission of Sheila's hearsay statements did not probably injuriously affect Sheffield's substantial rights. The ultimate issue at trial was whether Sheffield acted in self-defense when he shot and killed McMillian. Sheila's hearsay statements directly rebutted Sheffield's self-defense claim, indicating that Sheffield was jealous and that he had no justification for shooting McMillian. Although the State presented a strong case of guilt, we cannot say that the State's evidence of Sheffield's guilt was so overwhelming as to render harmless the improper admission of Sheila's statements accusing Sheffield of intentionally killing McMillian without proper justification. See generally Hillard v. State, 53 So.3d 165 (Ala. Crim. App. 2010).

Conclusion

Because Sheila's hearsay statements may have contributed to the jury's verdict, we conclude that the erroneous admission of those statements adversely affected Sheffield's substantial rights and thus were not harmless under Rule 45, Ala. R. App. P. Accordingly, the judgment of the trial court is reversed, and this case is remanded for proceedings consistent with this opinion.

APPLICATION FOR REHEARING OVERRULED; OPINION OF MARCH 17, 2017, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

Windom, P.J., and Welch, Kellum, and Burke, JJ., concur.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Investigator Chenoweth testified that Sheffield was wearing a plastic "pancake type holster" ... "designed for a Glock-type weapon" and explained that the holster has a mechanism that requires a person "to know to push the button in and then to pull the gun out." (R. 449.) Investigator Chenoweth confirmed that Sheffield "would have had to have pushed that release button" to unholster his firearm. (R. 450.)

      On application for rehearing, the State notes that, while arguing in favor of its motion, the State averred to the trial court "that the portions [of the recording] played to the trial court included the topics of 'money and mortgages and bankruptcy.'" (State's brief on application for rehearing, p. 10.) The record indicates that that particular argument to the trial court was incorrect; therefore, we do not include those facts in this opinion.

      Dennis Knizley was Sheffield's trial counsel.

      "OEC" is an acronym for Oregon Evidence Code.

      ORS § 40.455 provides that "[h]earsay is not admissible except as provided in ORS 40.450 to 40.475 or as otherwise provided by law."

      If anything, Sheila's statements that she was afraid of Sheffield and wanted to end their marriage indicate that Sheila would benefit from Sheffield's possible conviction and prison sentence. Any determination of Sheila's motive, however, would be speculative because Sheila was not available for cross-examination.


text:
    FLORIDA BOARD OF BAR EXAMINERS
    RE: E.N.C.
    CASE NO.: SC18-1021
    Supreme Court of Florida.
    JULY 2, 2018
    Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board's recommendation is approved by the Court and E.N.C. shall be admitted to The Florida Bar subject to the following conditions:
    1. The applicant's license to practice law shall be placed on probation for a period of three years.
    2. During the period of probation, the applicant shall:
    (a) continue to consult with Scott Weinstein, Ph.D., or other licensed mental health provider, at least, monthly for the first year, and quarterly thereafter, or more frequently as his mental health provider deems necessary;
    (b) follow promptly, diligently and completely all instructions by his mental health provider including the taking of any medication in the recommended manner as may be prescribed by his mental health provider;
    (c) have his mental health provider submit quarterly reports to The Florida Bar during the entire probationary period. These reports shall confirm the applicant's consultations for the preceding quarter and shall advise The Florida Bar of the applicant's continuing ability to engage in the active practice of law;
    (d) obtain an agreement from his mental health provider stating that the mental health provider will immediately notify The Florida Bar if the applicant misses a scheduled appointment without prior rescheduling; and
    (e) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), and (d) above.
    3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.
    4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.
    5. If the applicant's license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.
    6. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court's order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.
    7. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant's practice of law.
    8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.
    9. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant's file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.
    A True Copy
    Test:
    John A. Tomasino
    Clerk, Supreme Court


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: E.N.V.
    CASE NO.: SC18-993
    Supreme Court of Florida.
    JULY 2, 2018
    Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board's recommendation is approved by the Court and E.N.V. shall be admitted to The Florida Bar subject to the following conditions:
    1. The Applicant's license to practice law shall be placed on probation for a period of two years.
   2. During the period of probation, the Applicant shall:

(a) abstain from the consumption of alcoholic beverages;

(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);

(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on November 27, 2013, and by extending the contract to cover the entire period of probation if necessary;

(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of his affairs and carry the AA/NA message to other substance dependent individuals;

(e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.;

(f) submit to and pay for a minimum of eight (8) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by Florida Lawyers Assistance, Inc.; and

(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2(a), (b), (c), (d), (e), and (f) above.

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

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

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

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

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

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

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

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

A True Copy

Test:

John A. Tomasino

Clerk, Supreme Court


author: LAWSON, J.

text:
    Maria Isabel GIRALDO, et al., Petitioners, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent.
    No. SC17-297
    Supreme Court of Florida.
    [July 5, 2018]
    Celene H. Humphries, Philip J. Padovano, Maegen P. Luka, and Joseph T. Eagleton of Brannock & Humphries, P.A., Tampa, Florida; and Floyd Faglie of Staunton & Faglie, PL, Monticello, Florida, for Petitioners
    Pamela Jo Bondi, Attorney General, Jonathan A. Glogau, Special Counsel, and Elizabeth Teegen, Assistant Attorney General, Tallahassee, Florida; Stuart F. Williams, General Counsel, and Tracy Cooper George, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, Florida, for Respondent
    Twyla L. Sketchley of The Sketchley Law Firm, P.A., Tallahassee, Florida; Ellen S. Morris of Elder Law Associates, P.A., Boca Raton, Florida; Ron M. Landsman of Ron M. Landsman, P.A., Rockville, Maryland; and Jill J. Burzynski of Burzynski Elder Law, Naples, Florida, Amici Curiae National Academy of Elder Care Law Attorneys, Academy of Florida Elder Law Attorneys, Special Needs Alliance, and Elder Law Section of The Florida Bar
    Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, Florida, Amicus Curiae Florida Justice Association
   LAWSON, J.

We accepted review of the decision of the First District Court of Appeal in Giraldo v. Agency for Health Care Administration , 208 So.3d 244 (Fla. 1st DCA 2016), on the ground that it expressly and directly conflicts with the Second District Court of Appeal's decision in Willoughby v. Agency for Health Care Administration , 212 So.3d 516 (Fla. 2d DCA 2017), regarding whether the Agency for Health Care Administration (AHCA) may lien the future medical expenses portion of a Florida Medicaid recipient's tort recovery. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we hold that under federal law AHCA may only reach the past medical expenses portion of a Medicaid recipient's tort recovery to satisfy its Medicaid lien. Because the First District held otherwise, we quash the decision below, approve the Second District's decision, and remand with instructions that the First District direct the administrative law judge (ALJ) to reduce AHCA's lien amount in this case to $13,881.79.

BACKGROUND

After Juan L. Villa suffered extreme injuries in an all-terrain vehicle accident, Florida's Medicaid program (administered by AHCA) paid $322,222.27 for Villa's medical care. Villa later settled with one of multiple alleged tortfeasors for $1 million. Claims against other alleged tortfeasers were still pending. Using the formula outlined in section 409.910(11)(f), Florida Statutes (2015), AHCA calculated the presumptively appropriate amount of its lien at $321,720.16, and asserted a lien in that amount against Villa's settlement. Section 409.910(17)(b) authorizes Medicaid recipients to contest the amount of a Medicaid lien at a hearing before the Division of Administrative Hearings (DOAH), by proving that "a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by the agency pursuant to the formula set forth in paragraph (11)(f)." § 409.910(17)(b), Fla. Stat. (2015). Villa timely petitioned for this hearing.

At the DOAH hearing, Villa presented uncontested expert testimony establishing that only $13,881.79 of the $1 million tort recovery represented compensation for Villa's past medical expenses and argued that AHCA's lien should be limited to this amount. AHCA argued that the law authorizes recovery of Medicaid expenditures from third-party payments for past medical expenses and reasonably anticipated future medical expenses. Because Villa had the burden of rebutting the lien amount derived from the statutory formula-and put on no evidence to show that the lien exceeded the amount of his recovery properly allocated to his anticipated future medical expenses-AHCA argued that it should recover in the full amount of its lien.

Villa unexpectedly died weeks after the hearing, and his parents, as personal representatives of his estate, were properly substituted into this case as Petitioners. The ALJ's final order affirmed AHCA's lien amount and determined that Villa had failed to rebut the statutory formula because he did not establish that the lien exceeded the portion of his recovery allocated to future medical expenses. Petitioners appealed, and the First District affirmed the ALJ's final order, holding that Florida law and the federal Medicaid Act allow AHCA to secure reimbursement for its Medicaid expenditures from the portions of Villa's third-party settlement recovery allocated to both past and future medical expenses. The Second District later reached the opposite conclusion in Willoughby , holding that the federal Medicaid Act prohibits AHCA from placing a lien on the future medical expenses portions of a recipient's recovery.

ANALYSIS

This case concerns interpretation of the federal Medicaid Act. Questions of statutory interpretation are reviewed de novo. See Borden v. East-European Ins. Co. , 921 So.2d 587, 591 (Fla. 2006).

I. Overview

Medicaid is a joint federal-state cooperative program that helps participating states provide medical services to residents who cannot afford treatment. Arkansas Dep't of Health & Human Servs. v. Ahlborn , 547 U.S. 268, 275, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006). The federal Medicaid Act-title XIX of the Social Security Act-governs regulation of the program, and it mandates that participating states follow the Medicaid Act by "compl[ying] with certain statutory requirements for making eligibility determinations, collecting and maintaining information, and administering the program." Ahlborn , 547 U.S. at 275, 126 S.Ct. 1752. Significantly, the Act contains a general anti-lien provision protecting Medicaid recipients by broadly prohibiting state Medicaid agencies from imposing liens against any of a recipient's property. 42 U.S.C. § 1396p(a)(1) (2012). However, the Act contains a narrow exception to the anti-lien prohibition requiring states to seek reimbursement for their Medicaid expenditures by pursuing payment from third parties legally liable for the recipients' medical expenses. Ahlborn , 547 U.S. at 284-85, 126 S.Ct. 1752. These provisions "pre-empt[ ] a State's effort to take any portion of a Medicaid beneficiary's tort judgment or settlement not 'designated as payments for medical care,' " Wos v. E.M.A. , 568 U.S. 627, 630, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013) (quoting Ahlborn , 547 U.S. at 284, 126 S.Ct. 1752 ), and set "a ceiling on a State's potential share of a beneficiary's tort recovery," id. at 633, 133 S.Ct. 1391.

II. Construing the Medicaid Act

We first examine the Act's plain language, applying the principle that "[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, ... the statute must be given its plain and obvious meaning." Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey , 102 Fla. 1141, 137 So. 157, 159 (1931) ).

The portion of the Medicaid Act defining the "ceiling"-the limitation on what portion of a recipient's tort recovery a state can be subject to a lien- reads in relevant part:

[T]o the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual, the State is considered to have acquired the rights of such individual to payment by any other party for such health care items or services.

42 U.S.C. § 1396a(a)(25)(H) (2012) (emphasis added). "Such health care items or services" is most naturally and reasonably read as referring to those "health care items or services" already "furnished" and for which "payment has been made under the State plan." Id. Those are the health care items and services for which "the State is considered to have acquired ... rights" by assignment "to any payments by any other party," id. , and they are past medical expenses only. We see no reasonable way to read this language as giving states a right to assignment of that portion of a tort recovery from which the injured party will be expected to pay his or her anticipated medical expenses in the future, without aid from the government.

As explained by the Second District, this reading of the Act is consistent with the "majority view that the Medicaid lien does not attach to settlement funds allocable to future medical expenses," Willoughby , 212 So.3d at 524, and appears to be compelled by Ahlborn and Wos , id. at 523-25. Even if not compelled by Ahlborn and Wos , because we read the plain language of the Medicaid Act as limiting Florida's assignment rights (and lien) to settlement funds fairly allocable to past medical expenses, no further analysis is needed.

III. On Remand

Because we hold that the federal Medicaid Act prohibits AHCA from placing a lien on the future medical expenses portion of a Medicaid recipient's tort recovery, we remand with instructions that the First District direct the ALJ to reduce AHCA's lien amount to $13,881.79. Although a factfinder may reject "uncontradicted testimony," there must be a "reasonable basis in the evidence" for the rejection. Wald v. Grainger , 64 So.3d 1201, 1205-06 (Fla. 2011). Here, Villa presented uncontradicted evidence establishing $13,881.79 as the settlement portion properly allocated to his past medical expenses, and there is no reasonable basis in this record to reject Villa's evidence. For this reason, no further factfinding is required.

CONCLUSION

We quash the decision below in Giraldo , approve Willoughby , and hold that federal law allows AHCA to lien only the past medical expenses portion of a Medicaid beneficiary's third-party tort recovery to satisfy its Medicaid lien. We remand this case to the First District with instructions to direct the ALJ to reduce the awarded amount to $13,881.79 for satisfaction of AHCA's lien.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur. POLSTON, J., concurs specially in part and dissents in part with an opinion.

POLSTON, J., concurring specially in part and dissenting in part.

I agree with the majority's conclusion that federal law only allows AHCA to place a lien on the past medical expenses portion of a Medicaid beneficiary's third-party tort recovery, but I reach this conclusion for a different reason. Additionally, I disagree with the majority's reduction of the amount of AHCA's lien on the settlement without a factfinder determining the portion of the settlement properly allocated to past medical expenses.

I.

Unlike the majority, I do not believe the federal Medicaid Act, considered as a whole, is clear and unambiguous regarding whether AHCA can place a lien on the portions of a settlement that represent past and future medical damages. For example, the general anti-lien provision of the Medicaid Act uses both the past and future tenses, while the provision requiring beneficiaries to assign to the states any rights to third-party payments does not use either the past or future tense, while the provision providing that states acquire rights to third-party payments uses only the past tense. Compare 42 U.S.C. § 1396p(a)(1) (2012) (employing both the past and future tenses when stating "paid or to be paid"), with 42 U.S.C. § 1396k(a)(1)(A) (2012) (requiring assignment to State "to payment for medical care from any third party"), with 42 U.S.C. § 1396a(a)(25)(H) (2012) (employing only the past tense of "has been made" along with "such health care items or services").

Instead, I believe the United States Supreme Court's opinion in Arkansas Department of Health & Human Services v. Ahlborn , 547 U.S. 268, 275, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006), compels our construction of the federal Medicaid Act to only allow AHCA to place a lien on the portion of a tort recovery that represents past medical expenses. In Ahlborn , the Medicaid beneficiary sought damages from a third party "not only for past medical costs, but also for permanent physical injury; future medical expenses; past and future pain, suffering, and mental anguish; past lost earnings and working time; and permanent impairment of the ability to earn in the future." 547 U.S. at 273, 126 S.Ct. 1752. "[T]he case was settled out of court ... for a total of $550,000[, but t]he parties did not allocate the settlement between categories of damages." Id. at 274, 126 S.Ct. 1752. The state agency asserted a lien against the settlement "in the amount of $215,645.30-the total cost of payments made ... for Ahlborn's care." Id. Thereafter, Ahlborn sought

a declaration that the lien violated the federal Medicaid laws insofar as its satisfaction would require depletion of compensation for injuries other than past medical expenses. To facilitate the District Court's resolution of the legal questions presented, the parties, [including the state agency,] stipulated that Ahlborn's entire claim was reasonably valued at $3,040,708.12; that the settlement amounted to approximately one-sixth of that sum; and that, if Ahlborn's construction of federal law was correct, ADHS would be entitled to only the portion of the settlement ($35,581.47) that constituted reimbursement for medical payments made.

Id. (emphasis added). To be clear, the parties only stipulated that $35,581.47 would be the correct figure "for medical payments made" if "Ahlborn's construction of federal law was correct." Id. And Ahlborn's argument construed the federal Medicaid law to only allow the State to recover the portion of the settlement representing past medical expenses. Id.

In the end, the United States Supreme Court held that "[f]ederal Medicaid law does not authorize [the state agency] to assert a lien on Ahlborn's settlement in an amount exceeding $35,581.47, and the federal anti-lien provision affirmatively prohibits it from doing so." Id. at 292, 126 S.Ct. 1752. Therefore, because the United States Supreme Court in Ahlborn held that, pursuant to federal law, a state agency cannot assert a lien on a tort settlement in excess of the amount stipulated by the parties to constitute reimbursement for past medical expenses, we are compelled to conclude that federal law prohibits AHCA from asserting a lien in an amount exceeding the portion of a tort settlement that constitutes reimbursement for past medical expenses.

II.

Of course, the difference between this case and Ahlborn is that AHCA has not stipulated to the $4,817.56 allocation for past medical expenses outlined in the settlement at issue in this case (or to the testimony that $13,881.76 is a reasonable allocation of past medical damages here). And the United States Supreme Court in Ahlborn explained that this distinction may warrant procedural safeguards: "[T]he risk that parties to a tort suit will allocate away the State's interest can be avoided either by obtaining the State's advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision." Id. at 288, 126 S.Ct. 1752. Conversely, "just as there are risks in underestimating the value of readily calculable damages in settlement negotiations, so also is there a countervailing concern that a rule of absolute priority might preclude settlement in a large number of cases, and be unfair to the recipient in others." Id.

To protect parties against such possible manipulation, the United States Supreme Court's subsequent decision in Wos v. E.M.A. , 568 U.S. 627, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013), clarified that procedural safeguards are needed when there is no judicially approved allocation, stipulation, or judgment. Specifically, in Wos , the United States Supreme Court explained that "[w]hen there has been a judicial finding or approval of an allocation between medical and nonmedical damages-in the form of either a jury verdict, court decree, or stipulation binding on all parties-that is the end of the matter." 568 U.S. at 638, 133 S.Ct. 1391. However, "[w]hen the State and the beneficiary are unable to agree on an allocation, ... the parties could 'submi[t] the matter to a court for decision." Id. (quoting Ahlborn , 547 U.S. at 288, 126 S.Ct. 1752 ). The United States Supreme Court also mentioned the possibility of an "administrative proceeding" to determine the proper allocation. Id. at 638-39, 133 S.Ct. 1391.

Here, because there is no stipulation, judgment, or administrative finding regarding the portion of the settlement that represents past medical expenses, I dissent to the majority's declaration on appellate review that $13,881.79 is the proper allocation. The ALJ never found that $13,881.79 was the proper amount to allocate as past medical expenses in the settlement, and it is not proper that this Court do so on appellate review. While the beneficiary presented testimony of two expert witnesses to prove the valuation of total damages was $25,000,000, and that $13,881.79 was a reasonable allocation of past medical damages, the ALJ's final order noted that the testimony was questionable and based upon two-year-old hearsay reports. Therefore, I would remand this case to the First District with instructions that the ALJ determine the proper allocation for past medical expenses and that this allocation be awarded for satisfaction of AHCA's lien.

Accordingly, I concur specially in part and dissent in part.

      The First District correctly observed that Florida law plainly contemplates recoupment of AHCA's expenditures on behalf of a Medicaid recipient from portions of the recipient's tort recovery "allocated as reimbursement for past and future medical expenses," Giraldo , 208 So.3d at 249 (quoting § 409.910 (17)(b), Fla. Stat. (2014) (emphasis added) ), but also recognized that because states participating in the Medicaid program must follow federal law, resolution of the conflict question is ultimately governed by federal law. Id.

      AHCA stipulated that the beneficiary's death does not affect the case.


author: PER CURIAM.

text:
    Scott MANSFIELD, Appellant, v. STATE of Florida, Appellee.
    No. SC17-690
    Supreme Court of Florida.
    [July 5, 2018]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, James L. Driscoll Jr., David Dixon Hendry, and Gregory W. Brown, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

We have for review Scott Mansfield's appeal of the circuit court's order denying Mansfield's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Mansfield's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst) , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Mansfield's appeal pending the disposition of Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock , Mansfield responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

Because Mansfield's response to the order to show cause appeared to raise issues independent of Hurst , we issued an order directing briefing on the "non- Hurst related issues." Having reviewed Mansfield's initial brief, the State's answer brief, and Mansfield's reply brief, we conclude that Mansfield has not raised any issue that does not depend on the retroactive application of Hurst and that Mansfield is not entitled to relief. Mansfield was sentenced to death following a jury's unanimous recommendation for death. Mansfield v. State , 758 So.2d 636, 642 (Fla. 2000). Mansfield's sentence of death became final in 2001. Mansfield v. Florida , 532 U.S. 998, 121 S.Ct. 1663, 149 L.Ed.2d 644 (2001). Thus, Hurst does not apply retroactively to Mansfield's sentence of death. See Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Mansfield's motion.

The Court having carefully considered all arguments raised by Mansfield, we caution that any rehearing motion containing reargument will be stricken.

It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.

PARIENTE, J., concurs in result with an opinion.

PARIENTE, J., concurring in result.

Because Mansfield's jury's recommendation for death was unanimous, he would not be entitled to Hurst relief if Hurst applied retroactively to his case. Therefore, I agree that he is not entitled to relief. As to retroactivity, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock .

      Although Mansfield has argued claims related to the State's presentation of alternate theories of murder that would otherwise appear facially to be independent of Hurst and yet untimely, he argues that they are timely because they were filed within one year of the issuance of Hurst v. Florida . Because Hurst v. Florida , as interpreted by this Court in Hurst , does not apply retroactively to Mansfield's case, it does not open the door to otherwise untimely claims under Florida Rule of Criminal Procedure 3.851(d)(2)(B).

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).

      Hitchcock v. State , 226 So.3d 216, 220-23 (Fla.) (Pariente, J., dissenting), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; see Asay v. State (Asay V ), 210 So. 3d 1, 32-37 (Fla. 2016) (Pariente, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017).


text:
    Orlando NOA, Petitioner, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, Respondent.
    No. SC17-738
    Supreme Court of Florida.
    [July 5, 2018]
    Paul B. Feltman of Alvarez, Feltman & DaSilva, P.L., Coral Gables, Florida, for Petitioner
    Hinda Klein of Conroy Simberg, Hollywood, Florida, for Respondent
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the Third District Court of Appeal in Noa v. Florida Insurance Guaranty Ass'n , 215 So.3d 141 (Fla. 3d DCA 2017), based on express and direct conflict. See art. V, § 3(b)(3), Fla. Const. After further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

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

LEWIS, J., dissents.


text:
    Kevin T. PEACOCK, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0793
    District Court of Appeal of Florida, First District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marvin KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0647
    District Court of Appeal of Florida, First District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Reginald GOLDWIRE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5115
    District Court of Appeal of Florida, First District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jerome Alexander ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4358
    District Court of Appeal of Florida, First District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Leo HOLLINGSWORTH, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D17-3635
    District Court of Appeal of Florida, First District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael JONES, Appellant, v. Brad STETSON, Mallory D. Cooper, and Donald R. Moran, Appellees.
    No. 1D17-2366
    District Court of Appeal of Florida, First District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Gustavo LOPEZ-VELOZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1690
    District Court of Appeal of Florida, First District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles GWIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0277
    District Court of Appeal of Florida, First District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Cornelius MARTIN, II, Appellant, v. LEON COUNTY SHERIFF'S OFFICE, and Walt McNeil, Sheriff, Appellee.
    No. 1D18-0688
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert G. FOUSHEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1562
    District Court of Appeal of Florida, First District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles A. BRADFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1216
    District Court of Appeal of Florida, First District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jonathon Clayton PROUTY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1005
    District Court of Appeal of Florida, First District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Valeria Andrea WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0324
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Altonio RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2963
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Miguel A. SORDO, Appellant, v. CARIB SALES, LLC /AMTRUST NORTH AMERICA OF FLORIDA and Technology Insurance, Appellees.
    No. 1D17-4929
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gregory Andrew MCLEAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5304
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tonjas Kaimarcus POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-146
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dontonio Diaz THORNTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2106
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Danny CONLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2467
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Renee WOOL, Appellee.
    No. 1D16-5261
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bruce KAPLAN, Appellant, v. Jennifer ERLINGER and Justin Federico, Appellees.
    No. 1D17-635
    District Court of Appeal of Florida, First District.
    June 28, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dieros R. NIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2397
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Valeria Andrea WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1005
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tito YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1754
    District Court of Appeal of Florida, First District.
    June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Julie Ann NELLIGAN, Appellant, v. Raymond Bernard JUNK, III, Appellee.
    No. 1D17-5177
    District Court of Appeal of Florida, First District.
    July 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    J.F., Mother of J.L. and T.T., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D17-5432
    District Court of Appeal of Florida, First District.
    July 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.