text:
    In re AMENDMENTS TO THE FLORIDA PROBATE RULES.
    No. SC07-1258.
    Supreme Court of Florida.
    July 12, 2007.
   PER CURIAM.

The Florida Bar’s Probate Rules Committee (Committee) has filed an out-of-cycle report proposing amendments to the Florida Probate Rules to conform the rules to recent legislation. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).

BACKGROUND

Under the Committee’s “fast-track” procedure for considering new legislation, the Committee proposes substantive amendments to rules 5.015 (General Definitions), 5.240 (Notice of Administration), and 5.241 (Notice to Creditors) and proposes new rule 5.648 (Emergency Temporary Guardian). Minor editorial amendments to the Committee Notes accompanying the rules are also proposed in response to recent legislative or rule amendments. The Executive Committee of the Florida Bar Board of Governors approved each of the Committee’s substantive proposals by a vote of 8-0.

AMENDMENTS

After considering the Committee’s proposals and reviewing the relevant legislation, we amend the Florida Probate Rules as proposed by the Committee. The substantive rule amendments proposed aré in response to legislative amendments passed in the 2005 and 2006 legislative sessions, some of which only recently became effective on July 1, 2007. In 2006, the Legislature repealed chapter 737, Florida Statutes (Trust Administration), and created new chapter 736, Florida Statutes (Florida Trust Code), effective July 1, 2007. See ch. 2006-217, §§ 1-13, 48, 49, Laws of Fla. Additionally, new chapter 739 (Florida Uniform Disclaimer of Property Interests Act) was added in 2005. See ch. 2005-108, § 1, Laws of Fla. In response to these legislative changes, the reference to chapter 737 in subdivision (a) of rule 5.015 (General Definitions) is deleted and references to chapters 736 and 739 are added.

Next, also in response to the repeal of chapter 737 and the creation of new chapter 736, subdivision (a)(3) of rule 5.240 (Notice of Administration) is amended to replace the term “beneficiary,” formerly defined in section 737.303(4)(b), Florida Statutes (2006) with the term “qualified beneficiary,” as defined in section 736.0103(14), Florida Statutes (2006). Additionally, new subdivision 5.240(e) (Waiver of Service) has been added to clarify when deadlines commence as to persons waiving rather than receiving service.

Next, new subdivision (e) is added to rule 5.241 (Notice to Creditors) to provide that if service of the notice to creditors on the Agency for Health Care Administration is required, it must be accompanied by a death certificate. This requirement is deemed by the Committee to be a procedural requirement that should be included in the rule because of the inclusion of a similar requirement in section 733.2121(3)(d), Florida Statutes (2006). See ch. 2005-140, § 4, Laws of Fla. (amending section 733.2121(3)(d), effective July 1, 2005).

Finally, the Committee proposes new rule 5.648 (Emergency Temporary Guardian). The Committee did not address the amendments to section 744.3031, Florida Statutes (“Emergency temporary guardianship”) made by chapter 2006-178, section 5, Laws of Florida, in its 2006 fast-track report. However, the Committee recently reexamined these amendments and concluded that the amended statute contains procedure that properly should be contained in a rule. The proposed new rule incorporates the procedural aspects of the statute and provides additional procedural guidance to petitioners and emergency temporary guardians. Subdivision (a) of the rule addresses the contents of the petition and includes allegations satisfying the requirements of section 744.3031(1), Florida Statutes (2006); subdivision (b) provides that notice of the petition and any hearing on the petition must be served on the alleged incapacitated person and that person’s attorney; subdivision (c) provides for service of the petition and notice on the public guardian if the petitioner proposes that the public guardian be appointed as emergency temporary guardian; subdivision (d) provides that the order appointing the emergency temporary guardian must include a statement of the powers and duties of the guardian, as required by section 744.3031(1), Florida Statutes (2006); subdivision (e) provides the procedure to extend the authority of the emergency temporary guardian and carries out the intent of section 744.3031(3), Florida Statutes (2006); and, finally, subdivision (f) addresses the contents of the emergency temporary guardian’s final report, incorporating the procedure now contained in section 744.3031(8), Florida Statutes (2006).

CONCLUSION

Accordingly, the Florida Probate Rules are amended as reflected in the appendix to this opinion. New language is indicated by underlining, and deleted language is indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. These amendments shall become effective immediately upon the release of this opinion. However, because the Court did not publish the amendments for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 5.015. GENERAL DEFINITIONS

(a) General. The definitions and rules of construction stated or referred to in section 1.01, Florida Statutes, and chapters 731, 732, 733, 734, 735, 736, 73¾ 738, 739, and 744, Florida Statutes, as amended from time to time, shall apply to these rules, unless otherwise defined in these rules.

(b) [No Change]

Committee Notes

Rule History

1977 Revision: No change in rule. Correction of typographical error in committee note.

This is intended to simplify drafting of these rules and should be liberally construed. See Fla. Prob. R. 5.190 and 5.540 and also §§ 731.201 and 744.102, Fla. Stat.

1988 Revision: Rule was expanded due to deletion of rule 5.190. Committee notes expanded. Citation form changes in rule and committee notes.

1992 Revision: Citation form changes in rule and committee notes.

2000 Revision: Subdivision (b)(2) amended to delete outdated reference to rule 5.550(c).

2007 Revision: Subdivision (a) amended to add reference to chapter 736, Florida Statutes, which was added to the statutes effective July 1, 2007, and which replaces deleted chapter 737, and to add reference to chapter 739, Florida Statutes, which was added effective July 1, 2005. Committee notes revised.

Statutory References

§ 1.01, Fla. Stat. Definitions.

§ 731.201, Fla. Stat. General definitions.

§ 736.0103, Fla. Stat. Definitions.

§ 738.102, Fla. Stat. Definitions.

§ 739.102, Fla. Stat. Definitions.

§ 744.102, Fla. Stat. Definitions.

RULE 5.040. NOTICE

(a)-(d) [No Change]

Committee Notes

[No Change]

Rule History

1975 Revision: Implements section 731.301, Florida Statutes.

1977 Revision: Reference to elisor.

1980 Revision: Editorial changes. Clarification of time for filing defenses after formal notice. Authorizes court to give relief to delinquent respondent from ex parte status; relief from service on numerous persons; allows optional use of formal notice.

1984 Revision: Editorial changes. Eliminates deadline for filing as opposed to serving defenses after formal notice; defines procedure subsequent to service of defenses after formal notice; new requirements for service of formal notice on incompetents and corporations; defines when service of formal notice is deemed complete; provisions relating to method of service of informal notice transferred to new rules 5.041 and 5.042; eliminates waiver of notice by will.

1988 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.

1991 Revision: Subdivision (b) amended to define informal notice more clearly.

1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.

1996 Revision: Subdivision (a) amended to permit service of formal notice by commercial delivery service to conform to 1993 amendment to section 731.301(1), Florida Statutes. Editorial changes.

2001 Revision: Editorial changes in subdivision (a)(3)(A) to clarify requirements for service of formal notice.

2003 Revision: Committee notes revised.

2005 Revision: Subdivision (a)(3)(A) amended to delete requirement of court approval of commercial delivery service.

2006 Revision: Committee notes revised.

2007 Revision: Committee notes revised.

Statutory References

§ 1.01(3), Fla. Stat. Definitions.

ch. 48, Fla. Stat. Process and service of process.

ch. 49, Fla. Stat. Constructive service of process.

§ 731.105, Fla. Stat. In rem proceeding.

§ 731.201(46)^ (18),(22), Fla. Stat. General definitions.

§ 731.301, Fla. Stat. Notice.

§ 733.212, Fla. Stat. Notice of administration; filing of objections.

§ 733.2123, Fla. Stat. Adjudication before issuance of letters.

§ 733.502, Fla. Stat. Resignation of personal representative.

§ 733.613, Fla. Stat. Personal representative’s right to sell real property.

§ 733.6175, Fla. Stat. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.

§ 733.901, Fla. Stat. Final discharge.

§ 744.106, Fla. Stat. Notice.

§ 744.3201, Fla. Stat. Petition to determine incapacity.

§ 744.331, Fla. Stat. Procedures to determine incapacity.

§ 744.3371, Fla. Stat. Notice of petition for appointment of guardian and hearing.

§ 744.441, Fla. Stat. Powers of guardian upon court approval.

§ 744.447, Fla. Stat. Petition for authorization to act.

§ 744.477, Fla. Stat. Proceedings for removal of a guardian.

Rule References

[No Change]

RULE 5.080. DISCOVERY AND SUBPOENA

(a)-(c) [No Change]

Committee Notes

[No Change]

Rule History

1975 Revision: This rule is the same as prior rule 5.080, broadened to include guardianships and intended to clearly permit the use of discovery practices in non-adversary probate and guardianship matters.

1977 Revision: Editorial change in citation form in committee note.

1984 Revision: Florida Rules of Civil Procedure 1.290, 1.300, 1.351, and 1.410 have been added.

1988 Revision: Subdivision (a)(15) deleted as duplicative of rule 5.070 Subpoena. Editorial change in (b). Citation form change in committee notes.

1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.

1996 Revision: Reference to rule 1.400 eliminated because of deletion of that rule from the Florida Rules of Civil Procedure. Editorial change.

2002 Revision: Reference to rule 1.410 transferred to subdivision (a) from former rule 5.070. Subdivision (b) amended to give court discretion to assess attorneys’ fees. Subdivision (c) added. Committee notes revised.

2006 Revision: Committee notes revised.

2007 Revision: Committee notes revised.

Statutory References

§ 731.201(24X23), Fla. Stat. General definitions.

§ 733.106, Fla. Stat. Costs and attorney’s fees.

§ 744.105, Fla. Stat. Costs.

§ 744.108, Fla. Stat. Guardian’s and attorney’s fees and expenses.

Rule References

[No Change]

RULE 5.200. PETITION FOR ADMINISTRATION

The petition for administration shall be verified by the petitioner and shall contain:

(a)-(j) [No Change]

Committee Notes

Rule History

1977 Revision: Addition to (b)(5) to require an affirmative statement that the person sought to be appointed as personal representative is qualified to serve. Committee note expanded to include additional statutory references.

Substantially the same as section 733.202, Florida Statutes, and implementing sections 733.301 through 733.305, Florida Statutes.

1988 Revision: Editorial changes. Committee notes revised.

1992 Revision: Addition of phrase in subdivision (b) to conform to 1992 amendment to section 733.202(2)(b), Florida Statutes. Reference to clerk ascertaining the amount of the filing fee deleted in subdivision (g) because of repeal of sliding scale of filing fees. The remaining language was deemed unnecessary. Editorial changes. Committee notes revised. Citation form changes in committee notes.

2002 Revision: Addition of phrases in subdivision (j) to add references to wills probated in Florida where the original is in the possession of a foreign official. Editorial changes. Committee notes revised.

2003 Revision: Committee notes revised.

2007 Revision: Committee notes revised.

Statutory References

§ 731.201(⅞1)(23), Fla. Stat. General definitions.

§ 731.301, Fla. Stat. Notice.

§ 733.202, Fla. Stat. Petition.

§ 733.301, Fla. Stat. Preference in appointment of personal representative.

§ 733.302, Fla. Stat. Who may be appointed personal representative.

§ 733.303, Fla. Stat. Persons not qualified.

§ 733.304, Fla. Stat. Nonresidents.

§ 733.305, Fla. Stat. Trust companies and other corporations and associations.

Rule References

[No Change]

RULE 5.240. NOTICE OF ADMINISTRATION

(a) Service. The personal representative shall promptly serve a copy of the notice of administration on the following persons who are known to the personal representative and who were not previously served under section 733.2123, Florida Statutes:

(1) the decedent’s surviving spouse;

(2) all beneficiaries;

(3) a trustee of any trust described in section 733.707(3), Florida Statutes and each qualified beneficiary of the trust as defined in section 737.303(4)(b)736.0103(14), if each trustee is also a personal representative of the estate; and

(4) persons who may be entitled to exempt property in the manner provided for service of formal notice. The personal representative may similarly serve a copy of the notice on any devisee under another will or heirs or others who claim or may claim an interest in the estate.

(b) Contents. The notice shall state:

(1) the name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, whether the estate is testate or intestate, and, if testate, the date of the will and any codicils;

(2) the name and address of the personal representative and of the personal representative’s attorney;

(3) that any interested person on whom the notice is served who challenges the validity of the will, the qualifications of the personal representative, venue, or jurisdiction of the court is required to file any objections with the court in the manner provided in the Florida Probate Rules within the time required by law or those objections are forever barred;

(4) that any person entitled to exempt property is required to file a petition for determination of exempt property within the time provided by law or the right to exempt property is deemed waived; and

(5) that a surviving — spouse-seeking—an elective share must file an election to take an elective share must be filed within the time provided by law.

(c)-(d) [No Change]

(e) Waiver of Service. For the purpose of determining deadlines established by reference to the date of service of a copy of the notice of administration in cases in which service has been waived, service on a person who has waived notice shall be deemed to occur on the date the waiver is filed.

Committee Notes

Rule History

1977 Revision: Former subdivision (c) is deleted as being substantive rather than procedural.

1984 Revision: Editorial changes; new requirement to file proof of publication; new requirements as to form of objections to will and qualifications of personal representative. Committee notes revised.

1988 Revision: The obligation to mail notice of administration to all known or reasonably ascertainable creditors has been added to comply with the dictates of Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1840, 99 L.Ed.2d 565 (1988).

This rule does not require sending notice of administration to creditors in estates where the time for filing claims has expired before the effective date of this rule. However, no opinion is offered whether such claims are barred by the provisions of section 733.702, Florida Statutes.

Committee notes revised. Citation form changes in committee notes.

1991 Revision: Subdivision (a) modified to make it consistent with recent changes to sections 733.212 and 733.702, Florida Statutes. Those statutes were amended to comply with the dictates of Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). For the same reason, subdivision (e) was eliminated.

1992 Revision: Former subdivision (e) revised and reinstated to emphasize need for personal representative to determine all known or reasonably ascertainable creditors. Editorial changes; committee notes revised; citation form changes in committee notes.

1996 Revision: Subdivision (a) amended to require service of notice of administration on trustees of certain revocable trusts as defined by Florida statute. Editorial changes.

2002 Revision: Procedures for notifying creditors are now governed by new rule 5.241. Committee notes revised.

2003 Revision: Change in title of (a) to reflect elimination of publication of notice. Committee notes revised.

2005 Revision: Subdivision (a)(3) amended to make it consistent with 2003 change to section 733.212(l)(c), Florida Statutes, regarding when service on trust beneficiaries is required, and clarifying editorial change made in (a). New subdivision (b)(5) added regarding notice to file election to take elective share. Committee notes revised.

2007 Revision: Subdivision (a)(3) amended to replace reference to “beneficiary” with “qualified beneficiary” and to change reference from former section 737.303(4)(b) to new section 736.0103(14), which defines that term. Subdivision (b)(5) amended to delete the reference to the surviving: spouse filing the election as another person can file the election on behalf of the surviving spouse. New subdivision (e) added to provide a deadline for objection by a person who waives service. Committee notes revised.

Statutory References

§ 731.201(24)(23), Fla. Stat. General definitions.

§ 731.301, Fla. Stat. Notice.

§ 731.302, Fla. Stat. Waiver and consent by interested person.

§ 732.2135, Fla. Stat. Time of election; extensions; withdrawal.

§ 732.5165, Fla. Stat. Effect of fraud, duress, mistake, and undue influence.

§ 733.101, Fla. Stat. Venue of probate proceedings.

§ 733.109, Fla. Stat. Revocation of probate.

§ 733.212, Fla. Stat. Notice of administration; filing of objections.

§ 733.2123, Fla. Stat. Adjudication before issuance of letters.

§ 733.302, Fla. Stat. Who may be appointed personal representative.

§ 733.303, Fla. Stat. Persons not qualified.

§ 733.305, Fla. Stat. Trust companies and other corporations and associations.

§ 733.504, Fla. Stat. Removal of personal representative; causes for removal.

§ 733.506, Fla. Stat. Proceedings for removal.

Rule References

[No Change]

RULE 5.241. NOTICE TO CREDITORS

(a)-(d) [No Change]

(e) Service of Death Certificate. If service of the notice on the Agency for Health Care Administration is required, it shall be accompanied by a death certificate.

Committee Notes

[No Change]

Rule History

2002 Revision: New rule to implement procedures consistent with new section 733.2121, Florida Statutes.

2003 Revision: Committee notes revised.

2005 Revision: Subdivision (a) amended to clarify approved methods of service on creditors. Committee notes revised.

2007 Revision: New subdivision (e) added to require service of a copy of the decedent’s death certificate on the Agency for Health Care Administration, as is now required by section 733.2121(3)(d), Florida Statutes.

Statutory References

[No Change]

Rule Reference

[No Change]

RULE 5.270. REVOCATION OF PROBATE

(a)-(b) [No Change]

Committee Notes

[No Change]

Rule History

1984 Revision: Extensive changes. Committee notes revised.

1988 Revision: Language of subdivision (b) of the rule rewritten to track the statute more closely. Committee notes expanded. Citation form change in committee notes.

1992 Revision: Committee notes revised. Citation form changes in committee notes.

2003 Revision: Committee notes revised.

2005 Revision: “Beneficiaries” substituted for “devisees” in subdivision (b) to conform language to section 733.109(2), Florida Statutes.

2007 Revision: Committee notes revised.

Statutory References

§ 731.201(21X23), Fla. Stat. General definitions.

§ 732.5165, Fla. Stat. Effect of fraud, duress, mistake, and undue influence.

§ 733.109, Fla. Stat. Revocation of probate.

§ 733.212, Fla. Stat. Notice of administration; filing of objections.

§ 733.2123, Fla. Stat. Adjudication before issuance of letters.

Rule References

[No Change]

RULE 5.346. FIDUCIARY ACCOUNTING

(a)-(d) [No Change]

Committee Notes

This rule substantially adopts the Uniform Fiduciary Accounting Principles and Model Formats adopted by the Committee on National Fiduciary Accounting Standards of the American Bar Association: Section of Real Property, Probate and Trust Law, the American College of Probate Counsel, the American Bankers Association: Trust Division, and other organizations.

Accountings shall also comply with the Florida principal and income law, chapter 738, Florida Statutes.

Attached as Appendix B to this rule are an explanation and commentary for each of the foregoing standards, which shall be considered as a Committee Note to this rule.

Accountings that substantially conform to the model formats are acceptable. The model accounting format included in Appendix A is only a suggested form.

Rule.5.180(a)(1)(F).allows-.a- -waiver — to the requirement that principal and interest be-separately-aeeeunted-fer.

Rule History

1988 Revision: New rule.

1992 Revision: Editorial changes throughout. Rule changed to require compliance with the Uniform Fiduciary Accounting Principles and Model Formats for accounting of all transactions occurring on or after January 1, 1994. Committee notes revised. Citation form changes in committee notes.

1996 Revision: Committee notes revised.

1999 Revision: Committee notes revised to correct rule reference and to reflect formatting changes in accounting formats.

2002 Revision: Subdivisions (a) and (b) amended to clarify contents of accounting. Committee notes revised.

2003 Revision: Committee notes revised.

2005 Revision: Verification requirement added as new (d). Committee notes revised.

2007 Revision: Committee notes revised.

Statutory References

§ 733.501, Fla. Stat. Curators.

§ 733.5036, Fla. Stat. Accounting and discharge following resignation.

§ 733.508, Fla. Stat. Accounting and discharge of removed personal representatives upon removal.

§ 733.602(1), Fla. Stat. General duties.

§ 733.612(18), Fla. Stat. Transactions authorized for the personal representative; exceptions.

§ 737.3035736.08135, Fla. Stat. Trust ac-countings.

ch. 738, Fla. Stat. Principal and income.

Rule References

[No Change]

APPENDIX A

Note: Schedule E should be a complete list of all assets on hand reflecting inventory values for each item, adjusted in accord accordance with any appropriate entries on Schedule D.

Current market values for any assets that are known to be different from the inventory or carrying values as of the close of the accounting period should be shown in the column marked “Current Value.” The total inventory or adjusted carrying value (not Current Value) must agree with the Total for Item VI on Summary.

APPENDIX B

[No change]

RULE 5.355. PROCEEDINGS FOR REVIEW OF EMPLOYMENT OF AGENTS AND COMPENSATION OF PERSONAL REPRESENTATIVES AND ESTATE EMPLOYEES

[No Change]

Committee Notes

[No Change]

Rule History

1988 Revision: New rule.

1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.

1996 Revision: Committee notes revised.

2003 Revision: Committee notes revised.

2007 Revision: Committee notes revised.

Statutory References

§ 731.201(21X23), Fla. Stat. General definitions.

§ 731.301, Fla. Stat. Notice.

§ 733.612(19), Fla. Stat. Transactions authorized for the personal representative; exceptions.

§ 733.617, Fla. Stat. Compensation of personal representative.

§ 733.6171, Fla. Stat. Compensation of attorney for the personal representative.

§ 733.6175, Fla. Stat. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.

Rule References

[No Change]

RULE 5.385. DETERMINATION OF BENEFICIARIES AND SHARES

(a)-(c) [No Change]

Committee Notes

[No Change]

Rule History

1988 Revision: New rule.

1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.

2002 Revision: Subdivision (c) added to implement procedure formerly found in section 733.105(2), Florida Statutes. Committee notes revised.

2003 Revision: Change in subdivision (c) to replace “heirs or devisees” with “beneficiaries” to incorporate term used in section 733.105, Florida Statutes. Committee notes revised.

2007 Revision: Committee notes revised.

Statutory References

ch. 49, Fla. Stat. Constructive service of process.

§ 731.201(2), (21X23), Fla. Stat. General definitions.

§ 731.301, Fla. Stat. Notice.

§ 733.105, Fla. Stat. Determination of beneficiaries.

Rule References

[No Change]

RULE 5.400. DISTRIBUTION AND DISCHARGE

(a)-(e) [No Change]

Committee Notes

[No Change]

Rule History

1980 Revision: Change in prior (a)(6) to require that an objection set forth the basis on which it is being made.

1984 Revision: This rule has been substantially revised. Portions of the prior rule are now incorporated in rules 5.400 and 5.401. The committee has included the procedure for filing and serving of objections to the final accounting, petition for discharge, plan of distribution, or compensation in rule 5.401.

1988 Revision: Subdivision (b)(1) is deleted to avoid duplication with rule 5.846. Subdivision (c) is amended to add the 12-month time specification of section 733.901(1), Florida Statutes. Committee notes revised. Citation form changes in committee notes.

1992 Revision: Subdivision (b)(5)(D) is added. Editorial changes. Committee notes revised. Citation form changes in committee notes.

1996 Revision: Addition in (a)(4) of specific attorney fee compensation disclosure requirements found in § 733.6171(9), Florida Statutes, and expanded to cover all compensation. Committee notes revised.

2003 Revision: Committee notes revised.

2005 Revision: Subdivision (f) deleted to avoid duplication with rule 5.180.

2006 Revision: Committee notes revised.

2007 Revision: Committee notes revised.

Statutory References

§ 731.201(-1Q)-, — (⅛1-)(12), (23), Fla. Stat. General definitions.

§ 731.302, Fla. Stat. Waiver and consent by interested person.

§ 733.809, Fla. Stat. Right of retainer.

§ 733.810, Fla. Stat. Distribution in kind; valuation.

§ 733.811, Fla. Stat. Distribution; right or title of distributee.

§ 733.812, Fla. Stat. Improper distribution or payment; liability of distributee or payee.

§ 733.901, Fla. Stat. Final discharge.

Rule References

[No Change]

RULE 5.401. OBJECTIONS TO PETITION FOR DISCHARGE OR FINAL ACCOUNTING

(a)-(f) [No Change]

Committee Notes

Rule History

1984 Revision: New rule. Objections to the petition for discharge or final accounting were formerly under prior rule 5.400. Clarifies procedure for objections.

1988 Revision: Editorial changes in (a). Committee notes revised. Citation form changes in committee notes.

1992 Revision: Committee notes revised. Citation form changes in committee notes.

1996 Revision: Subdivision (d) amended to clarify that 90-day period pertains to service of hearing notice, not the actual hearing date.

2003 Revision: Committee notes revised.

2007 Revision: Committee notes revised.

Statutory References

§ 731.201(10), (21)(12), (23), Fla. Stat. General definitions.

§ 733.6175, Fla. Stat. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.

§ 733.901, Fla. Stat. Final discharge.

Rule References

[No Change]

RULE 5.405. PROCEEDINGS TO DETERMINE PROTECTED HOMESTEAD REAL PROPERTY

(a)-(c) [No Change]

Committee Notes

[No Change]

Rule History

1984 Revision: New rule.

1988 Revision: Editorial change in (a). Subdivision (b)(4) amended to conform to constitutional change. Committee notes revised. Citation form change in committee notes.

1992 Revision: Editorial change. Committee notes revised. Citation form changes in committee notes.

1996 Revision: Subdivision (c) amended to require description of real property that is the subject of the petition, description of any homestead property, and definition of specific interests of persons entitled to homestead real property.

2002 Revision: Replaces “homestead” with “protected homestead” throughout to conform to addition of term in section 731.201(29), Florida Statutes. Committee notes revised.

2003 Revision: Committee notes revised.

2007 Revision: Committee notes revised.

Constitutional Reference

[No Change]

Statutory References

§ 731.104, Fla. Stat. Verification of documents.

§ 731.201(29)(31), Fla. Stat. General definitions.

§ 732.401, Fla. Stat. Descent of homestead.

§ 732.4015, Fla. Stat. Devise of homestead.

§ 733.607, Fla. Stat. Possession of estate.

§ 733.608, Fla. Stat. General power of the personal representative.

Rule References

[No Change]

RULE 5.430. RESIGNATION OF PERSONAL REPRESENTATIVE

(a)-(k) [No Change]

Committee Notes

[No Change]

Rule History

1975 Revision: The rule provides for the orderly succession of personal representatives in the event a personal representative resigns or is removed.

1977 Revision: Editorial change in committee note.

1988 Revision: Editorial changes; captions added to subdivisions. Committee notes revised. Citation form changes in committee notes.

1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.

2003 Revision: Rule completely revised to comply with statutory changes. Committee notes revised.

2007 Revision: Committee notes revised.

Statutory References

§ 731.104, Fla. Stat. Verification of documents.

§ 731.201(21X23), Fla. Stat. General definitions.

§ 733.101, Fla. Stat. Venue of probate proceedings.

§ 733.502, Fla. Stat. Resignation of personal representative.

§ 733.503, Fla. Stat. Appointment of successor upon resignation.

§ 733.5035, Fla. Stat. Surrender of assets after resignation.

§ 733.5036, Fla. Stat. Accounting and discharge following resignation.

Rule References

[No Change]

RULE 5.440. PROCEEDINGS FOR REMOVAL

(a)-(d) [No Change]

Committee Notes

[No Change]

Rule History

1980 Revision: Subdivision (a) amended to require formal notice to interested persons and to delete requirement that court give directions as to mode of notice. Surety authorized to petition for removal.

1984 Revision: Editorial changes. Provisions in prior rule for contempt have been deleted since the court has the inherent power to punish for contempt. Committee notes revised.

1988 Revision: Last phrase of (a) added to implement the procedure found in section 733.505, Florida Statutes. Subdivision (b) amended to parallel interim accounting rules. Deletes ability to extend time to file and adds reference to court power to punish for contempt. Committee notes expanded. Editorial changes. Citation form changes in committee notes.

1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.

2002 Revision: Entire rule amended. Contents of accountings by removed fiduciaries are now governed by rule 5.346. Editorial changes in (a), (c), and (d). Committee notes revised.

2003 Revision: Committee notes revised.

2007 Revision: Committee notes revised.

Statutory References

§ 731.201424X23), Fla. Stat. General definitions.

§ 733.504, Fla. Stat. Removal of personal representative; causes of removal.

§ 733.505, Fla. Stat. Jurisdiction in removal proceedings.

§ 733.506, Fla. Stat. Proceedings for removal.

§ 733.5061, Fla. Stat. Appointment of successor upon removal.

§ 733.508, Fla. Stat. Accounting and discharge of removed personal representatives upon removal.

§ 733.509, Fla. Stat. Surrender of assets upon removal.

Rule References

[No Change]

RULE 5.620. INVENTORY

(a)-(d) [No Change]

Committee Notes

Rule History

1977 Revision: Change in committee notes to conform to statutory renumbering.

1984 Revision: Change to require inventory to be filed within 60 days after issuance of letters, rather than after appointment. Committee notes revised.

1988 Revision: Editorial changes. Committee notes revised. Citation form change in committee notes.

1989 Revision: Prior rule deleted and replaced by temporary emergency rule.

1991 Revision: Former rule 5.620(b) has been deleted as partly substantive and addressed in section 744.381, Florida Statutes, and the procedural part is unnecessary.

The committee recognizes the conflict between this rule and section 744.362, Florida Statutes, which requires the filing of the initial guardianship report (which includes the inventory) within 60 days after appointment. The committee believes this provision, which attempts to regulate when a paper must be filed with the court, is procedural and that a guardian may not receive letters of guardianship empowering the guardian to act contemporaneously with the appointment. Therefore, the issuance of letters is a more practical time from which to measure the beginning of the time period for the accomplishment of this act.

1992 Revision: Citation form changes in committee notes.

2005Revision: Editorial changes in (d).

2007 Revision: Committee notes revised.

Statutory References

§ 199.062(4), Fla. - Stah-Annual tax information-reportsr

§ 744.362, Fla. Stat. Initial guardianship report.

§ 744.365, Fla. Stat. Verified inventory.

§ 744.3701, Fla. Stat. Inspection of report.

§ 744.381, Flá. Stat. Appraisals.

§ 744.384, Fla..Stat. Subsequently discovered or acquired property.

Rule References

[No Change]

RULE 5.630. PETITION FOR APPROVAL OF ACTS

(a)-(c) [No Change]

Committee Notes

Rule History

1975 Revision: Substantially the same as sections 744.503, 744.447, and 744.451, Florida Statutes, with editorial changes.

1977 Revision: Change in statutory reference in rule and in committee note to conform to statutory renumbering.

1980 Revision: Implements 1979 amendment to section 744.447(2), Florida Statutes.

1988 Revision: Editorial changes; captions added to subdivisions. Committee notes revised. Citation form changes in rule and committee notes.

1989 Revision: Prior rule deleted and replaced by temporary emergency rule.

1991 Revision: Changes to conform to 1989 revised guardianship law.

1992 Revision: Committee notes revised. Citation form changes in committee notes.

2006 Revision: New (a)(6) added to incorporate 2006 amendment to section 744.441, Florida Statutes. New (c)(3) added to reflect passage of 2006 amendment to section 737.2065, Florida Statutes. Committee notes revised.

2007 Revision: Committee notes revised.

Statutory References

§ 737.2065736.0207, Fla. Stat. Trust contests.

§ 744.3215, Fla. Stat. Rights of persons determined incapacitated.

§ 744.441, Fla. Stat. Powers of guardian upon court approval.

§ 744.447, Fla. Stat. Petition for authorization to act.

§ 744.451, Fla. Stat. Order.

Rule References

[No Change]

RULE 5.648. EMERGENCY TEMPORARY GUARDIAN

(а) Petition for Appointment of Emergency Temporary Guardian.

Prior to appointment of a guardian but after a petition for determination of incapacity has been filed, the alleged incapacitated person or any adult interested in the welfare of that person may petition for the appointment of an emergency temporary guardian of the person or property. The petition shall be verified and shall state:

(1) the petitioner’s residence and post office address;

(2) the name, age, and residence and post office address of the alleged incapacitated person;

(3) that there appears to be imminent danger that the physical or mental health or safety of the alleged incapacitated person will be seriously impaired or that the alleged incapacitated person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken;

(4) the nature of the emergency and the reason immediate action must be taken;

(5) the extent of the emergency temporary guardianship, either limited or plenary, requested for the alleged incapacitated person, and, if known, the nature and value of the property to be subject to the emergency temporary guardianship;

(б) the names and addresses of the next of kin of the alleged incapacitated person known to the petitioner;

(7)the name and residence and post office address of the proposed emergency temporary guardian, and that the proposed emergency temporary guardian is qualified to serve, or that a willing and qualified emergency temporary guardian has not been located; and

(8)the proposed emergency temporary guardian’s relationship to or any previous association with the alleged incapacitated person.

(b) Notice'. Unless the court orders otherwise, notice of filing of the petition for appointment of an emergency temporary guardian and any hearing on the petition shall be served before the hearing on the petition on the alleged incapacitated person and on the alleged incapacitated person’s attorney.

(c) Service on Public Guardian. If the petitioner requests appointment of the public guardian as emergency temporary guardian, a copy of the petition and notice shall be served on the public guardian.

(d) Order. The order appointing the emergency temporary guardian shall specify the powers and duties of the emergency temporary guardian.-

(e) Extension of Authority. Prior to the expiration of the authority of the emergency temporary guardian, any interested person may file a verified petition for extension of authority of the emergency temporary guardian. The petition must show that the conditions that warranted the initial appointment of the emergency temporary guardian still exist. The petition shall be served on the ward’s attorney and on the emergency temporary guardian.

(f) Final Report. An emergency temporary guardian shall file a final report no later than 30 days after the expiration of the emergency temporary guardianship. A copy of the final report shall be served on the successor guardian, if any, the ward, and the ward’s attorney. With approval of the court, service on the ward may be accomplished by serving the attorney for the ward.

(1) If the emergency temporary guardian is a guardian of the property, the final report shall consist of a verified inventory of the ward’s property as of the date letters of emergency temporary guardianship were issued, a final accounting that gives a full and correct account of the receipts and disbursements of all the ward’s property over which the guardian had control, and a statement of the property on hand at the end of the emergency temporary guardianship.

(2) If the emergency temporary guardian is a guardian of the person, the final report shall summarize the activities of the guardian with regard to residential placement, medical condition, mental health and rehabilitative services, and the social condition of the ward to the extent of the authority granted to the emergency temporary guardian.

(3) If the emergency temporary guardian becomes the successor guardian of the property or person of the ward, the final report must satisfy the requirements of, and shall serve as, the initial report of the guardian of the property or person of the ward, as the case may be, as set forth in rule 5.690.

Committee Notes

Rule History

2007 Revision: New rule.

Statutory References

§ 744.3031, Fla. Stat. Emergency temporary guardianship.

§ 744.344(4), Fla. Stat. Order of appointment.

Rule References

Fla. Prob. R. 5.600 Oath.

Fla. Prob. R. 5.690 Initial Guardianship Report.

      . The appendix does not reflect amendments to the Florida Probate Rules that were adopted by the Court in In re Amendments to the Florida Probate Rules, 959 So.2d 1170 (Fla.2007). Those amendments become effective on January 1, 2008, at 12:01 a.m.

      . An original and nine paper copies of all comments must be filed with the Court on or before September 10, 2007, with a certificate of service verifying that a copy has been served on the Committee Chair, Linda S. Griffin, 1455 Court Street, Clearwater, Florida 33756-6161, as well as separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until October 1, 2007, to file a response to any comments filed with the Court. Electronic copiés of all comments and responses also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


source: Caselaw Access Project

author: THOMAS, J.

license: Public Domain

text:
    Jeanne S. HOFFMAN, Appellant, v. STATE of Florida, DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
    No. 1D06-2307.
    District Court of Appeal of Florida, First District.
    June 21, 2007.
    Rehearing Denied Sept. 19, 2007.

      Susan L. Kelsey of Anchors Smith Grimsley, Tallahassee; Jon C. Moyle, Jr., of Moyle, Flanigan, Katz, Raymond, White & Krasker, P.A., Tallahassee, for Appellant.
    Thomas E. Wright, Assistant General Counsel, Department of Management Services, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING, REHEARING EN BANC, AND FOR WRITTEN OPINION

THOMAS, J.

This cause is before us on Appellant’s motion for rehearing, rehearing en banc, and for written opinion. We deny the motion for rehearing and rehearing en banc, but grant the motion for written opinion filed pursuant to rule 9.330(a), Florida Rules of Appellate Procedure. Accordingly, we withdraw our opinion of February 21, 2007, and substitute this opinion in its place.

In the case we have before us, Appellant failed to timely respond to three letters from the Department of Management Services, Division of Retirement (Division), notifying her of an entitlement to a monthly retirement benefit following her husband’s death in 1996. Nine years later Appellant requested retroactive benefits, which the administrative law judge (ALJ) granted. The Department of Management Services (Department) issued a final order reversing the ALJ’s decision. While we are not unsympathetic to the human misfortune involved in this case, judicial restraint and the constitutional requirement of the separation of powers precludes this court from directing the executive branch to grant relief here. See Fla. Const., Art. II, § 3.

Facts and Procedural Background

In the Division’s third letter to Appellant, it stated that Appellant’s file would be placed on inactive status if she failed to respond within 30 days. The letter then stated that it would be Appellant’s responsibility to contact the Division when she wished to begin receiving a monthly retirement benefit, which would be effective on the first of the month following her contact. Appellant did not contact the Division until 2005, when she was informed by a Division employee that she had been eligible to receive a monthly benefit during the preceding nine years. Appellant requested benefits retroactive to 1996, alleging that in 1996 a Division employee informed her that she would be better off deferring her monthly benefit until she reached age 59-⅜. The Division denied her request, relying on rule 60S-4.0035(1), Florida Administrative Code, providing that it is the beneficiary’s responsibility to properly apply for benefits, and rule 60S-4.0035(3)(c), Florida Administrative Code, defining the effective date for benefit payment.

Appellant also filed a petition for a waiver or variance of rule 60S-4.0035(3)(c). The Division denied Appellant’s petition for waiver because she did not allege that application of rule 60S-4.0035(3)(c) affected her differently than any other similarly situated person. In addition, Appellant did not cite any authority for the Division to waive section 121.091, Florida Statutes (2004), which provides, “Benefits may not be paid ... unless ... a proper application has been filed in the manner prescribed by the department.” Appellant petitioned for a formal administrative review of the Division’s denial of her request for benefits and the denial of her waiver petition.

After a final hearing, the ALJ issued a recommended order awarding retroactive benefits. The ALJ found that the Division left Appellant with the impression that she would be better off waiting until she reached age 59-½ to receive her husband’s retirement benefits, but further found that the Division employee did not make any false or misleading statements, either by misrepresenting material facts or by failing to disclose them. Although the ALJ found that Appellant had access to all applicable statutes and rules, he concluded as a matter of fact that the Division’s third letter did not reasonably communicate to Appellant the risk of waiving her right to receive a benefit. He further found

as a matter of fact that a reasonable person could not have figured out what the Division had decided and what it intended to do, even if armed with the statutes and rules, because ascertaining the true nature of the Division’s determination entails more analytical, indeed legal, reasoning than an ordinary layperson should be expected to employ. In fact, it is determined, the warning letter was inadequate to put even a well-informed person, cognizant of the applicable laws, on notice of the Division’s decision regarding [Appellant’s] potential forfeiture of the early retirement death benefit and “deemed election” of the deferred monthly benefit.

The ALJ concluded that the Division’s correspondence did not provide Appellant fair warning; therefore, her application for monthly retirement benefits in 2005 was timely, and she was entitled to retroactive benefits. Appellant’s arguments regarding equitable estoppel and her petition for waiver were deemed moot.

In its final order, the Department rejected many of the ALJ’s findings of fact and all but one of his legal conclusions. The Department found that Appellant had access to all applicable statutes and rules; therefore, no obligation was created on the Division’s part when she chose not to avail herself of these materials. The Department rejected the ALJ’s factual finding that a reasonable person could not determine what the Division meant in its correspondence to Appellant. The Department concluded that section 121.091, Florida Statutes, was not ambiguous and that the record supported the Division’s conclusion that Appellant intended to defer her monthly benefit.

The Department further rejected Appellant’s petition for waiver or variance, finding that no evidence was presented that she was treated any differently than any other similarly situated person, or that a denial would create a substantial hardship. Thus, Appellant was not entitled to retroactive benefits.

Legal Analysis

Appellant presents several arguments on which to reverse the Department’s final order; however, as grounds for reversal in her motion for a written opinion, she argues only that the Department improperly rejected the ALJ’s factual findings and also that it failed to apply the doctrine of equitable estoppel. Appellant concedes that if this court reverses the final order based on one ground, the other is moot.

Rejection of the ALJ’s Factual Findings

An agency may not reject an ALJ’s factual findings if they are supported by competent, substantial evidence. See § 120.57(1)(Z), Fla. Stat. (2005). However, an agency reviews the ALJ’s conclusions of law and interpretation of administrative rules within its substantive jurisdiction de novo. The agency may reject such conclusions after stating its reasons with particularity and making a finding that its substituted conclusion is as reasonable or more reasonable than the ALJ’s conclusion. Id.

The ALJ’s factual finding that the Division’s letters to Appellant were deficient because they were unclear and failed to provide notice is not supported by competent, substantial evidence. Appellant is presumed to have notice of all applicable rules and statutes. See Ellis v. State, 762 So.2d 912 (Fla.2000) (explaining that publication of statutes provides constructive notice of their passage). Because of Appellant’s presumed knowledge, no evidence supports the ALJ’s finding that she could not have determined the Division’s intent. Further, competent, substantial evidence does not support the ALJ’s broad factual finding that no reasonable person could determine the Division’s intent. We note that, as the Department stated in its final order, in a retirement system with over 800,000 members, with the exception of Appellant, not a single instance was presented of a beneficiary not understanding the letters which the Division has been sending out for years.

Additionally, the ALJ found that Appellant could not have determined the Division’s intent even if armed with the applicable statutes and rules. Because the sufficiency of the Division’s notice is determined based on an objective standard, rather than a subjective standard, Appellant’s subjective belief does not provide competent, substantial evidence to support the ALJ’s finding that the Division’s notice was unclear and failed to communicate its intentions to Appellant. See Henry v. State Dep’t of Admin., Div. of Retirement, 431 So.2d 677, 680 (Fla. 1st DCA 1983). The Department, therefore, properly concluded that Appellant was not entitled to receive retroactive benefits.

Equitable Estoppel

In order to demonstrate estop-pel, Appellant must show that: (1) the Division represented a material fact contrary to its later asserted position; (2) Appellant relied on the Division’s earlier representation; and (3) Appellant changed positions to her detriment due to the Division’s representation and her reliance thereon. See State Dep’t of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981). Equitable estoppel is applied against a state agency only in exceptional circumstances and must include some positive act on the part of a state officer upon which Appellant had a right to rely and did rely to her detriment. See Wise v. Dep’t of Mgmt. Servs., Div. of Retirement, 930 So.2d 867, 873 (Fla. 2d DCA 2006); Greenhut Constr. Co. v. Henry A Knott, Inc., 247 So.2d 517, 524 (Fla. 1st DCA 1971). In addition, Appellant must prove the elements of estoppel by clear and convincing evidence. Castro v. E. Pass Enterprises, Inc., 881 So.2d 699, 700 (Fla. 1st DCA 2004).

We find that Appellant cannot establish the first element of equitable estoppel. The ALJ found that the Division did not make any false or misleading statement to her, either by misrepresenting material facts or failing to disclose them; therefore, Appellant has not shown that the Division represented a material fact contrary to its later asserted position.

Appellant argues that the Division omitted material facts, making her situation analogous to Wise. In Wise, the Second District reversed the Department’s final order denying retirement service credit because the document which the appellant received when she was hired failed to inform her that she was being hired into a temporary position. 930 So.2d at 871-72. The Second District determined that the appellant was entitled to receive retirement credit for her service even though service in a temporary position would not normally qualify for retirement credit, reasoning that rule 60S-1.004(5), Florida Administrative Code (2005), specifically requires that a temporary employee be informed he or she cannot participate in the Florida Retirement System. Id. at 871, 873.

The Second District further found, as a second basis to support its ruling, that awarding the appellant retirement credit for her service was justified by equitable estoppel. Id. at 873. In Wise, the ALJ originally found that the Division’s failure to provide the appellant with notice regarding the temporary nature of her position, along with the Division’s failure to document that she received the required notice, in violation of rule 60S-1.004(5), were omissions constituting tacit representations. Id. The Department rejected the ALJ’s finding, stating that the record did not show that the Division made any misrepresentations. Id. The Second District reversed, reasoning that the ALJ had found that an omission constituted a tacit representation, not that the Division made a misrepresentation.

Unlike the situation in Wise, the ALJ here specifically stated that the Division employee did not make any false or misleading statements, either by misrepresenting material facts or by failing to disclose them. Further, no specific rule states that the Division must inform beneficiaries they cannot receive retroactive benefits. The Division’s correspondence to Appellant informed her that she would not receive any benefit until the month after she filed an application; therefore, Appellant was informed that she would not receive any retroactive benefits.

We find that because Appellant has not established that the Division misrepresented a material fact, either by omission or failure to disclose, she has not shown that the Division was estopped from denying retroactive benefits. Additionally, we find that the Department did not err in rejecting the ALJ’s factual findings which were not supported by competent, substantial evidence. While we regret that Appellant has suffered a significant financial loss, we are constrained to affirm the Department’s final order denying retroactive benefits.

AFFIRMED.

BARFIELD and VAN NORTWICK, JJ., concur.


author: THOMPSON, J. ORFINGER, J.,

text:
    Jimmy Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2995.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2007.

      James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Jimmy Lee Jones appeals the revocation of his probation arguing the State did not meet the affidavit and arrest warrant requirements of section 948.06(1), Florida Statutes (2003), to toll the probationary period. Accordingly, the court lacked jurisdiction to revoke his probation after the probationary term ended. We agree and reverse.

The trial court revoked Jones’s earlier term of probation in January 2003 and imposed a new one-year probation term. On 21 May 2003, Jones was arrested for robbery of a store clerk. Stamped “Special Handling Violation of Probation,” an arrest affidavit/first appearance form filed 22 May 2003 included the law enforcement officer’s narrative that the robbery offense constituted a violation of condition (5) of Jones’s probation. The court set a revocation hearing for July 2003, but no revocation hearing or trial occurred on the May 2003 offense. On 23 June 2004, the State filed an amended affidavit of violation of probation, citing the May 2003 robbery and another violation of condition (5) for charges of home invasion robbery while armed and kidnapping while armed that occurred on 4 June 2004.

Jones unsuccessfully sought to suppress the home invasion robbery victims’ identification of him in the 2004 case; at trial, however, the jury acquitted him of both charges. Nonetheless, the defense had agreed that the trial court would try the violation of probation based upon the evidence presented at trial. Over defense objection that the State’s amended affidavit of violation did not properly charge him, the trial court ruled that the State had proved by a preponderance of the evidence that Jones had violated condition (5) of his probation by committing the home invasion robbery.

Jones timely filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) and raised the same objection concerning the tolling of the probation term under section 948.06(1). Though the rule 3.800 hearing transcript references an affidavit filed 9 July 2003, the circuit court clerk reported that there was no affidavit of probation violation filed by probation and parole in 2003. The trial court denied the motion.

First, we find no merit to Jones’s argument that the trial court abused its discretion in finding a probation violation when the trial evidence demonstrated some uncertainty over Jones’s identification. The victim identified Jones at trial and in a photopack prepared by law enforcement. Other circumstances concerning the recovery of some of the victim’s jewelry also tied Jones to the robbery. Trial courts have broad discretion in determining whether a term of probation has been violated, and the proper standard of review is whether the lower court abused its discretion. Johnson v. State, 880 So.2d 749, 750 (Fla. 5th DCA 2004).

The remaining issue before this court is whether the State met the tolling requirements of section 948.06(1) when no arrest warrant issued and the only affidavit filed is a notarized arrest affidavit/first appearance form stamped Special Handling Violation of Probation. We review de novo an issue that requires only a legal determination based on undisputed facts. State v. Florida, 894 So.2d 941, 945 (Fla.2005).

Jones argues that the court lacked jurisdiction to consider the violation of probation because both the filing of a violation affidavit and the issuance of an arrest warrant are required to toll the probationary period under section 948.06(1). The record does not include an affidavit of violation of probation filed during the one-year term of probation that commenced 10 January 2003. He contends that the June 2004 filing of an amended affidavit to allege the 2003 and 2004 new law violations did not resurrect the court’s jurisdiction.

Section 948.06(1) states in pertinent part:

Upon the filing of an affidavit alleging a violation of probation ... and following issuance of a warrant under s. 901.02, the probationary period is tolled until the court enters a ruling on the violation. Notwithstanding the tolling of probation as provided in this subsection, the court shall retain jurisdiction over the offender for any violation of the conditions of probation ... that is alleged to have occurred during the tolling period.

Once a term of probation expires, a court lacks jurisdiction to entertain an application for a revocation of probation based upon a violation that occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation. Stambaugh v. State, 891 So.2d 1136, 1139 (Fla. 4th DCA 2005). The appropriate steps require the issuance of an arrest warrant based upon an affidavit alleging a violation of probation. Id.; see also Baroulette v. McCray, 904 So.2d 575, 576-77 (Fla. 3d DCA 2005) (holding mere filing of affidavit of violation does not ensure court’s jurisdiction over defendant for revoking probation after probationary period has ended; an arrest warrant must ensue from the violations alleged in the affidavit).

In Jean-Gilles v. State, 921 So.2d 860, 861 (Fla. 4th DCA 2006), the court held that the trial court lacked jurisdiction to revoke probation where a warrant, but no affidavit of violation of probation, was filed before the defendant’s probationary period ended. Both the filing of an affidavit and issuance of a warrant are required to toll the probationary period. Id.

We reject the State’s argument that the issuance of an arrest warrant was not required here because the law enforcement officer knew of Jones’s probationary status and Jones had already been arrested for robbery. Citing Grubbs v. State, 373 So.2d 905, 908 (Fla.1979), the State urges that section 948.06 expressly authorizes the probation supervisor to arrest a probationer without a warrant and to bring the probationer before the court that entered the probation order whenever there are reasonable grounds to believe the probationer has violated his probation. The 1977 statute relied upon in Grubbs, however, did not expressly require for tolling the probationary term for the filing of an affidavit of probation and the issuance of a warrant.

Here, even if one construes the arrest affidavit/first appearance form filed 22 May 2003 as a properly sworn affidavit, it is the issuance of the warrant prior to the expiration of the probationary period that vests the trial court with jurisdiction, not the filing of the affidavit. See Crain v. State, 914 So.2d 1015, 1017 (Fla. 5th DCA 2005). Both the filing of an affidavit of violation and the issuance of an arrest warrant are required to toll the probationary period, and the mere filing of the affidavit is insufficient. Sepulveda v. State, 909 So.2d 568, 570 (Fla. 2d DCA 2005).

No arrest warrant issued or proper affidavit of violation of probation was filed in this case before Jones’s revocation of probation. Based upon the unique facts of this case, however, the record reflects that Jones was incarcerated for the majority of the time after the court imposed his one-year probation term in May 2003. The record and circuit court docket reflect that he has served about nine months of his one-year probation term.

It is well settled that a defendant cannot serve a prison term and be on probation simultaneously. Porter v. State, 585 So.2d 399, 400 (Fla. 1st DCA 1991). To hold otherwise would be inconsistent with the rehabilitative concept of probation which presupposes that the probationer is not in prison confinement. Id. Any term of probation presumed to run when the defendant cannot be supervised would be a nullity. Id. As this court explained in State v. Savage, 589 So.2d 1016, 1018 (Fla. 5th DCA 1991):

Simple logic would seem to dictate that, where a defendant is incarcerated ..., a probationary period from an unrelated sentence would be tolled since a probationary term should not be allowed to expire simply because a defendant has decided to incur new prison time as a result of a separate and distinct offense.

Applying this concept, the court in Bradley v. State, 721 So.2d 775 (Fla. 5th DCA 1998), held that defendant’s supervision was tolled during the period of his incarceration, and, therefore, he was still under state supervision when he violated the terms of his community control. Accord Williams v. State, 773 So.2d 660 (Fla. 5th DCA 2000).

The lack of service of an arrest warrant and the defective affidavit of violation of probation require us to reverse the revocation of Jones’s probation. Because Jones’s incarceration tolled his probationary term, we also hold that upon his release he remains on probation despite the reversal of his revocation of probation and consequent sentence.

Accordingly, we reverse the order of revocation and probation.

TORPY, J., concurs.

ORFINGER, J., concurs specially, with opinion.

ORFINGER, J.,

concurring specially with opinion.

I agree with the Court’s analysis of the issues presented and the result reached because of the wording of section 948.06(1), Florida Statutes (2003). As the majority opinion correctly observes, the statute only tolls the probationary period if an affidavit of violation is filed and a warrant is issued.

I also agree with the State’s argument that under the facts of this case, issuing a warrant would have been redundant, since Mr. Jones had already been arrested for the violation. However, the statute is clear on what is required to toll the running of the probationary period and that was not done here.

I urge the Legislature to amend section 948.06(1) to delete the requirement of an arrest warrant if an authorized officer makes a lawful arrest of an alleged probation violator and files an affidavit to that effect within the probationary period.

      . The one-year probation term commenced on 10 January 2003. Jones was arrested on 21 May 2003 and, according to the case docket, remained incarcerated until about 6 Feb-ruaiy 2004 when a surety bond posted. He was again arrested about 24 June 2004 for the subject home invasion robbery and has remained incarcerated since that time.

      . We express no opinion whether service of an arrest warrant and properly filed affidavit of violation of probation for the 2004 home invasion offense during the remaining term of Jones's probation could serve as a basis for the revocation of his probation.


author: SMITH, T., Associate Judge.

text:
    Arthur FRIEND, Appellant, v. DEUTSCHE BANK TRUST COMPANY, etc., Appellee.
    No. 5D06-2402.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2007.
    Rehearing Denied Sept. 21, 2007.

      Arthur Friend, New Smyrna, pro se.
    Wm. D. Newman, Jr. of Law Offices of Marshall C. Watson, P.A., Fort Lauder-dale, for Appellee.
   SMITH, T., Associate Judge.

Appellant, Arthur Friend appeals the trial court’s summary final judgment of foreclosure. Because his notice of appeal was not filed within thirty days of the rendition of the judgment we conclude that this court is without jurisdiction and therefore, this case is dismissed. Wetherington v. Minch, 637 So.2d 967 (Fla. 5th DCA 1994); Commonwealth Land Title Insurance Co. v. Freeman, 884 So.2d 164 (Fla.

2d DCA 2004); and American Auto. Assn: v. C.D.S. Towing & Recovery, Inc., 805 So.2d 1064 (Fla. 3d DCA 2002). The promissory note and mortgage provide for recovery by the appellee, Deutsche Bank Trust Company, of its attorneys’ fees and costs for this appeal. Therefore, the Bank’s motion for fees is granted and the trial court is directed to award the Bank its reasonable fees and taxable costs for this appeal.

DISMISSED.

THOMPSON and MONACO, JJ., concur.


author: PER CURIAM.

text:
    Kenneth L. WEINBERG, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, State of Florida, Respondents.
    No. 1D07-2520.
    District Court of Appeal of Florida, First District.
    July 25, 2007.
    Rehearing Denied Sept. 18, 2007.
    Kenneth L. Weinberg, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. See Gilbert v. Singletary, 632 So.2d 1104 (Fla. 4th DCA 1994).

BROWNING, C.J., DAVIS and POLSTON, JJ., concur.


author: PER CURIAM. SHEPHERD, J.,

text:
    Ophelia BROWN, Appellant, v. Samuel McKINNON, Appellee.
    No. 3D06-1332.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Rehearing Denied Sept. 26, 2007.
    Murray A. Greenberg, Miami, and Craig E. Leen & Rachel M. Wilhelm, for appellant.
    Charles McKinnon, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

Ophelia Brown appeals the trial court’s order denying her motion to dismiss, which denied her absolute and official immunity from suit in her individual capacity as a matter of law. We dismiss the appeal, as this Court has no jurisdiction to hear it. See Dep’t of Educ. v. Roe, 679 So.2d 756 (Fla.1996); Fla. R.App. P. 9.130(a)(3)(C)(vii).

Appeal dismissed.

RAMIREZ and CORTINAS, JJ., concur.

SHEPHERD, J.,

dissenting.

The appellant, Ophelia Brown, director of the Miami-Dade County Community Action Agency, seeks review of a non-final order denying her motion to dismiss a complaint filed against her individually by Samuel McKinnon, the deposed Executive Director of a Community Action Agency funds recipient, St. Albans Nursery. Ms. Brown asserts in this case that the common law doctrine of absolute immunity from suit and its statutory counterpart, sovereign official immunity, shield her individually from being named a defendant in this action. Because the relief to which she claims entitlement is immunity from suit, as distinguished from immunity from liability, Ms. Brown asserts there must exist a vehicle for immediate review of the order, else the immunity afforded her under the law is illusory. Relying upon Dep’ t of Ed. v. Roe, 679 So.2d 756 (Fla.1996), the majority concludes that she is not entitled to immediate appellate review of this non-final order. I agree with the majority on this point. However, our labor is not thus concluded. Ms. Brown argues in the alternative that in circumstances such as these, we should treat her appeal as a petition for certiorari and grant relief. Fla. R.App. P. 9.040(c)(“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy, had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.”); Edwards v. Edwards, 634 So.2d 284, 285 n. 1 (Fla. 4th DCA 1994)(treating a petition of certiorari as an appeal from a non-final order); Harris v. Lewis State Bank, 482 So.2d 1378, 1380-81 (Fla. 1st DCA 1986)(treating an appeal from a non-final order dismissing an action with leave to amend as a petition for cer-tiorari). Cf. Greene v. Cal. Fed. Bank, 658 So.2d 1027, 1028 (Fla. 4th DCA 1995)(“If this order constituted a departure from the essential requirements of law for which there was no adequate remedy by appeal from final judgment, we would treat this appeal as a petition for certiorari. It does not, however, and we therefore dismiss the appeal.”). I agree with Ms. Brown on this point. On the facts presented, I would grant, in part, the petition filed by Ms. Brown.

FACTS

This case arises out of the termination of Samuel McKinnon by his employer, St. Albans Nursery. The nursery participates in the federal Head Start program, which provides assistance to pre-school age children in economically disadvantaged communities. According to the complaint, the program is administered in Miami-Dade County by the Miami-Dade County Community Action Agency. The Agency Director, Ophelia Brown, is alleged to be the individual in charge of allocating and administering the distribution of the federal funds for the program within the County.

At the time of his termination, McKin-non was the Executive Director of St. Al-bans. It is not seriously disputed that St. Albans was in financial crisis. McKinnon alleges that Brown unlawfully caused St. Albans to terminate him. His complaint is supported by an attached letter from Ms. Brown on Agency stationery dated the day before his demise, stating that the Agency intended to withhold an $88,527 “second advance” necessary to pay the next day’s nursery personnel salaries unless “[t]he [St. Albans] Board moves to terminate the services of the present Executive Director, Samuel McKinnon, effective immediately,” and “[t]he Board cooperates fully with the Agency with the investigation of the financial status of St. Alban’s by an independent auditor ...”). He also alleges that prior to his dismissal, Brown stated to a gathering of Board members and others that McKin-non had been observed in a known drug area, had an outside job in contravention of his employment agreement with St. Al-bans, and was otherwise guilty of professional malfeasance. The complaint sounds in three counts, tortious interference by Brown in McKinnon’s written contract with St Albans, injurious falsehood, and defamation.

ANALYSIS

I. The Jurisdictional Question

The majority declines review of the order presented on the strength of Roe, 679 So.2d 756 (Fla.1996), which treated only the question of whether an earlier decision of the Florida Supreme Court, Tucker v. Resha, 648 So.2d 1187 (Fla.1995), should be extended to “create yet another nonfi-nal order for which review is available (under Florida Rule of Appellate Procedure 9.130).” Roe, 679 So.2d at 759. In Tucker, inspired by the fact that an interlocutory order denying a defense of qualified immunity to a federal civil rights claim in the federal system is treated as a reviewable final order in the United States Court of Appeal if the denial turns on an issue of law, our High Court elected to amend Florida Rule of Appellate Procedure 9.130 to afford a like benefit of review to government officials in this state who find themselves in the same circumstance in our state courts. Id. at 1190. See Fla. R.App. P. 9.130(a)(3)(C)(vii). Roe acknowledges the uniqueness of Tucker. Roe, 679 So.2d at 759 (“[I]n Tucker we had an interest in affording federal causes of action brought in state court the same treatment they would receive if brought in federal court”). Although in Roe, the Florida Supreme Court “approve[d] the decision of the district court of appeal [below],” Roe, 679 So.2d at 757-58, which “[had] considered DOE’s petition according to the standard of review for common law certiorari and denied relief.” Id. at 759, neither Roe nor Tucker appear to have expressly and directly opined on whether certiorari jurisdiction lies to review an order denying a motion to dismiss on the ground of common law or statutory immunity in the proper case. Certiorari review does exist in our court to review orders denying motions to dismiss in the proper circumstance. See, e.g., Miami-Dade County v. Fente, 949 So.2d 1101, 1102 (Fla. 3rd DCA 2007)(granting a petition for certiorari and quashing a non-final order denying petitioner’s motion to dismiss on sovereign immunity grounds); Jenne v. Maranto, 825 So.2d 409, 414 (Fla. 4th DCA 2002)(treating a non-final order denying a motion to dismiss for immunity pursuant to the Eleventh Amendment as a petition for writ of certiorari). If the intention of the above affirmance is to hitch interlocutory reviewability of an order denying a public official immunity defense to federal reviewability, then I must stand athwart the evolution of appellate jurisdiction in this state yelling “stop.” I have no need for a federal invitation to assert the historic original jurisdiction of this court.

II. This is a Proper Case

A writ of certiorari properly issues to the lower court from the denial of the motion to dismiss in this case if (1) the trial court departed from an essential requirement of law, (2) the order resulted in irreparable injury, and (3) the injury is incapable of being remedied by a final appeal. Blades v. State, Dept. of Revenue ex rel. Stewart, 943 So.2d 300 (Fla. 3d DCA 2006).

Ms. Brown asserts she is immune from suit in this case on the basis of both absolute immunity under the common law and its statutory counterpart, sovereign official immunity under section 768.29(9)(a)(2005). This section of the Florida statutes reads as follows:

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

§ 768.28(9)(a), Fla. Stat. (2005). A perusal of the statute makes clear that in order for a plaintiff to succeed in piercing the statutory immunity defense, he must make a good faith allegation in the complaint that the public official either acted outside the scope of his employment or in bad faith. Id. The statute places an affirmative duty on the plaintiff to satisfy this pleading requirement. Medberry v. McCallister, 937 So.2d 808, 814 (Fla. 1st DCA 2006). This duty cannot be satisfied by mere con-clusory allegations. See McClelland v. Cool, 547 So.2d 975, 977 (Fla. 2d DCA 1989). Without support, the complaint must fail.

Common law immunity provides even greater protection for public officials, shielding them from all statements made within the scope of their authority, “however false or malicious or badly motivated” the statement may be. Hauser v. Urchisin, 231 So.2d 6, 8 (Fla.1970); Albritton v. Gandy, 531 So.2d 381, 387 (Fla. 1st DCA 1988)(holding that common law immunity attaches “no matter how false or malicious or badly motivated a statement may be as long as the statements or actions fall within ‘the scope of duty’ of the public official”). As with statutory immunity, a plaintiff seeking to pierce a common law immunity defense has the burden of proper pleading. See Medberry, 937 So.2d at 814. To escape a motion to dismiss on the ground of common law immunity, the plaintiff has the affirmative obligation to allege the defendant acted outside the scope of her duties. See supra, p. 176 n. I. An allegation of malicious conduct will not save the complaint in the face of common law immunity protection.

Perhaps more significant for present purposes, however, is that if it attaches, both statutory immunity and common law immunity provide immunity from suit. Florida Statute 768.28(9)(a) affords both immunity from liability and immunity from suit. Willingham v. City of Orlando, 929 So.2d 43, 48 (Fla. 5th DCA 2006); Lemay v. Kondrk, 923 So.2d 1188, 1192 (Fla. 5th DCA 2006); Simon v. Murphy, 895 So.2d 1245, 1246 (Fla. 4th DCA 2005). Common law immunity also protects executive officials from both liability and suit. McNayr v. Kelly, 184 So.2d 428, 429 (Fla.1966); Stephens, 702 So.2d at 521.

Because statutory immunity and common law immunity shield officials from suit, it follows that an erroneous denial of the immunity results in irreparable injury incurable by plenary appeal. Once the official is forced to litigate, she cannot be reimmunized from suit after the fact. See Stephens, 702 So.2d at 521 (“[AJbsolute and qualified immunity for public officials are not merely defenses to liability; as the terms themselves imply, they protect a public official from having to defend a suit at all. This entitlement is lost if the defendant is required to go to trial; having been forced to defend the suit, the public official cannot be reimmunized after-the-fact.”)(internal citations omitted). It makes little sense to afford a shield of immunity from suit to a public official and then fail to enforce it at the earliest moment when enforcement is appropriate. For this reason, it is a departure from the essential elements of law to fail to dismiss a complaint when it is clear on the face of the complaint that the government official is entitled to statutory or common law immunity. Alfino v. Dep’t of Health & Rehabil itative Services, 676 So.2d 447, 449 (Fla. 5th DCA 1996)(holding a motion to dismiss a complaint was proper when defendant was protected by government immunity).

III. Brown’s Immunity Defenses

Given the breadth of the immunity shield provided to public employees under common law and statutory immunity, the trial court displayed a proper concern whether the plaintiff could ultimately state a cause of action against Ms. Brown individually. However, constrained by the obligation not to peer beyond the allegations of the complaint, see, e.g., Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 18, 15 (Fla. 3d DCA 2002), the court denied the motion to dismiss in its entirety. I disagree in part. I would conclude that the trial court correctly denied the motion to dismiss as to Count I, but departed from the essential requirements of law in denying the motion as to Counts II and III.

Count I of the complaint is McKinnon’s tortious interference count. This count is based upon a two-fold charge: (1) that Brown called McKinnon the day before he was fired and expressed to him privately her desire to see him removed from his position; and (2) Brown’s subsequent withholding of funds from St. Alban’s which is alleged to have been done “outside the scope of her employment.” There is no legal merit in the former allegation. The latter is based upon an attached contract between St. Albans and Head Start, which required a thirty-day notice for the withholding of any funds. Although I share the trial court’s concern over whether McKinnon “[will] be able to defeat a summary judgment on this issue,” I conclude that this latter allegation is facially sufficient to counter both Brown’s statutory immunity defense and her common law immunity defense.

I come to a different conclusion as to Counts II and III, the claims for injurious falsehood and defamation respectively. The factual bases for these two counts are substantially identical: before McKinnon was terminated, Brown stated in the presence of St. Alban’s board members and others that McKinnon was observed in a known drug area, had outside employment in contravention of his employment agreement with St. Alban’s; and that he “was guilty of professional malfeasance by co-mingling of funds.” According to the allegations of these two counts of the complaint, the remarks were “false,” “Ms. Brown knew the[ ] statements were false or acted in reckless disregard of their truth or falsity” and they “were made with the intent to injure and defame Mr. McKinnon.”

These allegations are sufficient to pierce the statutory immunity defense under section 768.28(9)(a) of the Florida Statutes as a matter of pleading because they plainly alleged “bad faith, [ ] malicious purpose” or “a manner exhibiting wanton and willful disregard of human rights, safety, or property” within the exceptions to this immunity statute. See § 768.28(9)(a), Fla. Stat. (2005). However, lacking any allegation that Brown acted outside the scope of her office, duties or authority when she made these statements, these allegations are insufficient to pierce the common law immunity defense. See Hauser, 281 So.2d at 8, discussed supra at p. 175-76.

CONCLUSION

Because it appears from the face of the complaint that McKinnon failed to state a cause of action for injurious falsehood or defamation, I would quash the order denying the motion to dismiss as to Counts II and III of the complaint. Brown has common law immunity from suit on these counts of the complaint and should not be forced to further defend them. However, I would deny the petition as to Count I, because McKinnon properly alleged a cause of action outside the protective limits of both her statutory and common law immunity.

      . I pause to note that the Second District has questioned whether the doctrine of common law sovereign immunity continues to exist in light of the adoption of Florida Statute 768.28. The Penthouse Inc., v. Saba, 399 So.2d 456, 458 n. 2 (Fla. 2d DCA 1981). This district has stood with those courts of appeal in Florida that have not so opined. See Franco v. Miami-Dade County, 947 So.2d 512, 515 (Fla. 3d DCA 2006)("If the governmental actor owes a duty of care to the plaintiff, then it must be determined whether sovereign immunity bars an action for the alleged breach of that duty.”); see also Stephens v. Geoghegan, 702 So.2d 517 (Fla. 2d DCA 1997)(quashing an order denying public officials' motion for summary judgment on ground of absolute immunity); Goetz v. Noble, 652 So.2d 1203 (Fla. 4th DCA 1995)(same). See also Kitchen v. K-Mart Corp., 697 So.2d 1200, 1207 (Fla.l997)(“Under our rules of statutory construction, a statute will not displace the common law unless the legislature expressly indicates an intention to do so.”).

      . The language used sometimes varies slightly. See McNayr v. Kelly, 184 So.2d 428, 429 (Fla.1966)(stating that the immunity shields officials acting "within the orbit of [their] duties and responsibilities.”). However, it may be stated, the purpose and intent of Florida common law immunity is to broadly shield "[all] government officials acting in connection with their official duties” Goetz, 652 So.2d at 1205. (recognizing the Supreme Court's "liberal interpretation” of the scope of the immunity in McNayr.) The intent is to ensure that complaints regarding the propriety of governmental action can be remedied without need for litigation regarding the government's middleman.


author: PER CURIAM. PER CURIAM.

text:
    James TORGERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1202.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Order Granting Rehearing Oct. 3, 2007.
    James Torgerson, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant, James Torgerson, appeals the summary denial of his rule 3.850 motion for postconviction relief. The State properly concedes error and thus we reverse and remand for further proceedings consistent with this opinion.

On May 18, 2005, the State charged Torgerson with two crimes: (1) lewd or lascivious battery on a person between 12 and 16, contrary to section 800.04(4)(a), Florida Statutes, and (2) sexual battery— great force not used, a violation of section 794.011(5), Florida Statutes. The charging document alleged the offenses were committed on the same victim, at some point between January 1, 2001 and August 14, 2001. A capias issued the next day, on May 19, 2005. Records show Torgerson was arrested on June 9, 2005 on the instant charges. On March 22, 2006, Tor-gerson entered into a negotiated plea deal with the State that required a guilty plea in exchange for a sentence of 30 months in prison followed by 15 years of sex-offender probation. Torgerson did not appeal the plea or sentence, but did file a timely rule 3.850 motion.

At the heart of Torgerson’s motion is the allegation that the statute of limitations had run out on August 15, 2004, three years after the victim turned 16 years old. There is no dispute that the victim turned 16 on August 15, 2001, nor any dispute that Torgerson was arrested on June 9, 2005. The lower court relied upon the 2001 version of section 775.15(7), Florida Statutes, which provides that the statute of limitations for the charged crimes does not begin to run “until the victim has reached the age of 18 or the violation is reported to a law enforcement agency ... whichever occurs earlier.” § 775.15(7), Fla. Stat. (2001). Previously, the statute of limitations read: “If the victim [of these applicable crimes] is under the age of 16, the applicable period of limitation, if any, does not begin to run until the victim has reached the age of 16 or the violation is reported to a law enforcement agency ... whichever occurs earlier.” § 775.15(7), Fla. Stat. (2000). The amendment resulted from the approval of Senate Bill No. 698, listed in the Florida Laws as Chapter 2001-102. Section two of the bill notes “This act shall take effect October 1, 2001.” While the bill was approved by the governor on May 31, 2001, the law expressly directs the effective date as October 1, 2001. This date comes after the purported criminal acts ceased on August 14, 2001.

The State concedes, in this Court, that it inappropriately relied on the amended version of the statute of limitations in the lower court. In State v. Shamy, 759 So.2d 728 (Fla. 4th DCA 2000), this Court noted the general rule that statutes of limitations “affect substantive rights” and that “the statute of limitations that applies in a criminal case is the one that was in effect at the time of the incidents giving rise to the charges.” Id. at 730 n. 2 (citing Brown v. State, 674 So.2d 738, 740 n. 1 (Fla. 2d DCA 1995); State v. Mack, 637 So.2d 18 (Fla. 4th DCA 1994)). Based on the charging document, the State was bound by the statute of limitations in effect on August 14, 2001, the final date charged in the information. At that point in time, the applicable version of section 775.15(7), Florida Statutes, began to run when the victim turned 16, which would be August 15, 2001. Thus, the State had to commence prosecution by August 15, 2004, when the three-year limitations period ran out, pursuant to section 775.15(l)(b), (2)(b), Florida Statutes (2000). Based on the record before this Court, the prosecution did not begin until after the statute of limitations had expired. Thus, Torgerson appears to have had grounds for a motion to dismiss prior to the entry of his plea.

As such, we reverse the summary denial of Torgerson’s rule 3.850 motion and remand to the trial court for further proceedings. Because it appears Torgerson may be entitled to discharge, we direct the lower court to expeditiously hold any hearing it deems necessary to properly decide the case on the merits.

Reversed and Remanded.

GUNTHER, WARNER and KLEIN, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

We grant the State’s motion for rehearing/clarification insomuch as to clarify that our opinion, issued August 1, 2007, should not be read to intimate that the State conceded the charges should be dismissed upon remand. Instead, the State properly conceded that the inappropriate version of the statute of limitations was used to support the summary denial of Torgerson’s motion for postconviction relief and that doing so was error. The State has not conceded that dismissal of the charges is warranted. As we wrote in the original opinion, upon remand, the lower court may hold any hearing it deems necessary to properly resolve this motion on the merits. The disposition remains, the order on appeal is reversed and the case is remanded for the reasons stated in the original opinion, as clarified herein.

GUNTHER, WARNER and KLEIN, JJ., concur.


text:
    Michael SILVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0656.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2007.
    Michael Silver, pro se, Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his rule 3.850 motion as untimely. We reverse.

The appellant pled guilty to burglary of a dwelling and was sentenced as a habitual felony offender to 12 years’ imprisonment. He filed a direct appeal but subsequently filed a motion to voluntarily dismiss it. On August 29, 2002, this Court rendered an order dismissing the case.

On August 5, 2004, the appellant filed a rule 3.850 motion raising six claims. The trial court denied the motion as untimely based upon the fact that the appellant voluntarily dismissed his direct appeal, which the court found caused his conviction to become final 30 days after it was imposed. This was error. The appellant’s conviction did not become final until after this Court relinquished jurisdiction on August 29, 2002, by issuing an order granting the appellant’s motion to voluntarily dismiss the direct appeal. See Small v. State, 941 So.2d 555 (Fla. 1st DCA 2006).

We therefore reverse and remand for the trial court to determine whether the motion is facially sufficient and, if so, to consider- the merits of the appellant’s claims.

REVERSED and REMANDED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Larry BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2898.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.
    Rehearing Denied Sept. 25, 2007.

      Robert I. Barrar of The Law Offices of Ellis Rubin and Robert I. Barrar, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Appellant Larry Bush appeals the trial court’s summary denial of his rule 3.850 motion. Bush argues the trial court erred in summarily denying his rule 3.850 motion as he entered his guilty plea based on erroneous advice of counsel. We reverse and remand for further proceedings.

“To establish a claim that defense counsel was ineffective, a defendant must establish deficient performance and prejudice, as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Zakrzewski v. State, 866 So.2d 688, 692 (Fla.2003).

As to the first prong, deficient performance, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. Second, as to the prejudice prong, the deficient performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined.

Id. (internal citations omitted).

“A trial attorney’s failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.” Williams v. State, 717 So.2d 1066, 1067 (Fla. 2d DCA 1998). “However, in order to establish the prejudice prong of Strickland the defendant ‘must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Zakrzewski, 866 So.2d at 694 (quoting Hill v. Lockhart, 474 U.S. 52, 57, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

In this case, Bush argues he would not have entered a plea of no contest had defense counsel told him he could file a successful motion for suppression of his statements to the police rather than telling him no defense would be successful at trial. Bush alleges he asked to speak with an attorney and his mother prior to being questioned by the police and that the police failed to honor this request. There is no evidence found in the record refuting Bush’s assertion that trial counsel represented that no defense at trial would be successful. Without the benefit of an evi-dentiary hearing, it is impossible to determine whether Bush’s assertions are true. In Zakrzewski, a case similar to the instant case, trial counsel testified as to why he did not file a motion to suppress at an evidentiary hearing on the defendant’s rule 3.850 motion. 866 So.2d at 694. In this case, there is no evidence showing the decision not to file a suppression motion was a strategy call or that defense counsel thought it would be futile to file a suppression motion. If there was no good reason for defense counsel’s failure to file the motion, counsel’s action constitutes deficient performance sufficient to satisfy the first prong of Strickland.

Further, as no evidentiary hearing was held below, this court must accept as true the factual allegations “to the extent they are not refuted by the record.” McLin v. State, 827 So.2d 948, 954 (Fla.2002) (citing Foster v. State, 810 So.2d 910, 914 (Fla.), cert. denied, 537 U.S. 990, 123 S.Ct. 470, 154 L.Ed.2d 359 (2002) (citations omitted)). This includes Bush’s assertion that had counsel advised him of a possibly successful motion to suppress, he would not have entered a plea, but would have gone to trial instead. This satisfies the prejudice prong of Strickland.

We reverse and remand the trial court summary denial of Bush’s rule 3.850 claim for either an evidentiary hearing, or attachment of those portions of the record which conclusively refute his claims.

STONE, POLEN and GROSS, JJ., concur.

      . Bush was a juvenile at the time of these offenses.


text:
    Hanna MACOOL, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2075.
    District Court of Appeal of Florida, Fifth District.
    Aug. 14, 2007.
    Rehearing Denied Sept. 18, 2007.
    Hanna Macool, Monticello, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Montoya v. State, 943 So.2d 253 (Fla. 3d DCA 2006); Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006), review granted, 948 So.2d 758 (Fla.2007).

THOMPSON, ORFINGER and MONACO, JJ., concur.


author: TAYLOR, J.

text:
    John McGILL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4238.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2007.
    Rehearing Denied Oct. 11, 2007.

      Robert I. Barrar of the Law Offices of Ellis Rubin, Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

John McGill appeals the summary denial of his Rule 3.850 motion for postconviction relief. His motion alleged that trial counsel rendered ineffective assistance of counsel by failing to seek suppression of statements he made to police after receiving Miranda warnings like those deemed defective in Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), review denied sub nom. State v. West, 892 So.2d 1014 (Fla.2005).

Appellant was convicted of sexual battery, false imprisonment, and simple battery. At trial, the state introduced appellant’s statement to police that he had not had sex with the victim to attack appellant’s defense of consensual sex. Defense counsel did not attempt to suppress appellant’s statements based on inadequate Miranda warnings. The warnings he received, however, were indistinguishable from those found deficient in Roberts. Further, the record does not show that appellant received warnings that contained the functional equivalent of required Miranda warnings, as were given in Canete v. State, 921 So.2d 687 (Fla. 4th DCA) (en banc), review denied, 944 So.2d 986 (Fla.2006).

We have previously held that this is a legally cognizable claim under Rule 3.850, requiring the attachment of portions of the record conclusively refuting the claim or an evidentiary hearing. See Monfiston v. State, 946 So.2d 1194 (Fla. 4th DCA 2006); Bronder v. State, 929 So.2d 615, 616 (Fla. 4th DCA 2006); Anthony v. State, 927 So.2d 1084, 1086 (Fla. 4th DCA 2006).

We roundly reject the state’s argument that appellant has demonstrated no prejudice by trial counsel’s failure to seek suppression of the statements because the statements were exculpatory. Statements obtained in violation of Miranda are inadmissible, regardless of whether they are inculpatory or exculpatory. Davis v. State, 698 So.2d 1182, 1188 (Fla.1997). Further, prejudice can be shown here, because appellant’s statements that no sexual acts occurred were in direct conflict with his defense at trial that he and the victim engaged in consensual sex. During closing argument, the state repeatedly referred to appellant’s statements in pointing out these inconsistencies and urging the jury to find him guilty.

We reverse the trial court’s summary denial and remand for an attachment of portions of the record conclusively refuting appellant’s claim or for an evidentiary hearing.

Reversed and Remanded.

KLEIN and HAZOURI, JJ., concur.