author: EVANDER, J.

text:
    Keith Robert PAGLIARO, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-685.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.

      Keith R. Pagliaro, Sneads, pro se.
    Bill McCollum, Attorney General Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Pagliaro appeals the summary denial of his Rule 3.850 motion for post-conviction relief. We find his motion raised a facially sufficient claim that was not conclusively refuted by the record.

Pagliaro originally pled guilty to robbery, possession of heroin, and possession of cannabis. He was sentenced to 39 months incarceration, followed by five years of probation. In April 2005, Paglia-ro was released on probation. He was arrested for violating his probation on December 5, 2005, for failure to pay costs of supervision. He was released on his own recognizance on December 19, 2005. Subsequently, he tested positive for cannabis in his urine sample. Pagliaro admitted to violating his probation at a hearing held in April, 2006. The trial court sentenced Pagliaro to nine years incarceration. His subsequent motion to withdraw plea was denied.

Pagliaro raised four claims in his Rule 3.850 motion. We affirm, without discussion, the summary denial of his first, third and fourth claims. In his second claim, Pagliaro alleged that trial counsel was ineffective in failing to investigate his mental health status. Pagliaro claimed he had a long history of mental illness. He had been diagnosed as bi-polar and had been involuntarily committed on, at least, two occasions. The most recent occasion was in November, 2005. In December, 2005, he alleged the trial court released him on his own recognizance so that he would be able to attend his social security disability hearing scheduled for December 22, 2005.

The Social Security Administration’s hearing officer’s report was attached to Pagliaro’s Rule 3.850 motion. The hearing officer apparently found Pagliaro had the following impairments, which were considered to be “severe” under Social Security Regulations: “degenerative disc disease of the lumbar spine, cervical spondylosis, bipolar disorder, personality disorder and substance abuse disorder, in remission.” Pagliaro alleged that he was taking various psychotropic medications as well as pain-management medications for his herniated disc. Significantly, he asserted that as a result of the combined effects of these medications, he was unable to understand the nature and consequences of his YOP plea hearing.

The trial court found this claim was conclusively refuted by Pagliaro’s answers to two questions during his plea colloquy. The trial judge’s questions and Pagliaro’s answers were as follows:

Q. Are you presently under the influence of any alcohol or intoxicant that would negatively effect your good judgment here today?
A. No, Sir.
Q. Have you ever been found to be insane, incompetent, mentally challenged and not restored to your capacity-
A. No.

We find this exchange was insufficient to conclusively refute Pagliaro’s claim that he did not understand the nature and consequences of the plea hearing because of the combined effects of his psychotropic medications and his pain medication. In the course of the plea colloquy, Pagliaro was never asked whether he was under the influence of any medications. In the substantially similar case of Randall v. State, 885 So.2d 932 (Fla. 5th DCA 2004), we held that an evidentiary hearing was required because the defendant’s mental status, at the time of the plea hearing, was not conclusively refuted by the record. See also Rivera v. State, 746 So.2d 542 (Fla. 2d DCA 1999). Accordingly, Paglia-ro is entitled to an evidentiary hearing on this claim.

AFFIRMED, in part; REVERSED, in part; REMANDED.

GRIFFIN and MONACO, JJ., concur.

      . Fla. R.Crim. P. 3.850.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Roy Nicholas GERACI, Jr., Appellant, v. Peter Adkins GERACI, Appellee.
    No. 2D06-2478.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2007.

      Mark P. Kelly of Lopez & Kelly, P.A., Tampa, for Appellant.
    Mark A. Linsky of Mark A. Linsky, P.A., Tampa; and Stuart C. Markman and Robert W. Ritsch of Kynes, Markman & Felman, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

Roy Nicholas Geraci, Jr. (Nick), appeals a final judgment of partition concerning four parcels of real property that he owns as a tenant in common with his brother, Peter Adkins Geraci (Peter). The judgment determines that the property is not divisible in kind without prejudice to the brothers and orders its public sale. The only issue on appeal, which appears to be a matter of first impression, is whether a trial court may conduct a hearing to determine whether property subject to partition is not divisible without first appointing commissioners to consider the matter. We conclude that section 64.061(4), Florida Statutes (2005), authorizes such a procedure when the parties’ pleadings have established the property’s divisibility as a disputed issue.

The Geraci brothers own four undeveloped parcels of land near the intersection of Dale Mabry Highway and Van Dyke Road in Hillsborough County. The parcels total approximately 290 acres. The largest parcel is approximately 250 acres on the northwest corner of these two main roads, with significant frontage on both roads. This parcel and two others are irregularly shaped. None of the four parcels shares significant boundaries with the others. This land is ripe for development.

The brothers appear to agree only on the fact that they disagree with one another. In July 2005, Peter filed a complaint for partition of these four parcels. He alleged that the property was not divisible without prejudice to the owners and accordingly needed to be sold. Nick answered the complaint, denying that the property was indivisible and requesting an order partitioning the property into two parts. He filed a counterclaim requesting that the court appoint three commissioners to effectuate the partition pursuant to section 64.061(1).

Peter sought to schedule a hearing before the trial court to determine whether the property was indivisible. Nick filed motions to appoint commissioners. Ultimately, over Nick’s objection, the trial court determined that it would hold an evidentiary hearing to determine whether the property could be divided without prejudice to either brother and would defer ruling on the motion to appoint commissioners until after the hearing.

At the evidentiary hearing, Peter presented the testimony of four experts to support his allegation that the property was not divisible in kind without prejudice to the brothers. Based upon this evidence, as well as evidence regarding the inability of these brothers to work together to resolve any issues regarding the property, the trial court found that the four parcels were not subject to partition and entered a judgment requiring the parcels to be sold at public sale. The court denied Nick’s request to appoint commissioners.

This case involves an interpretation of several provisions of chapter 64. Section 64.041 sets forth what must be included in a complaint seeking partition. This statute does not require the plaintiff to allege whether or not the property is capable of a physical division between the co-owners. Rather, the plaintiff is only required to plead a description of the lands sought to be partitioned and the names, addresses, and interests of each co-owner.

Section 64.051 describes the judgment. It states simply, “The court shall adjudge the rights and interests of the parties, and that partition be made if it appears that the parties are entitled to it.” The judgment then sets forth the “interest to be allotted” to each plaintiff or defendant with an ownership interest in the property. § 64.051.

The process by which the partition or allotment is made, however, is set forth in section 64.061. This section establishes a procedure for physically dividing property unless the property is indivisible. Section 64.061(1) states:

APPOINTMENT AND REMOVAL. — When a judgment of partition is made, the court shall appoint three suitable persons as commissioners to make the partition. They shall be selected by the court unless agreed on by the parties. They may be removed by the court for good cause and others appointed in their places.

The commissioners’ powers, duties, and compensation are explained in section 64.061(2), which also requires the eommis-sioners to prepare a written report “to make partition of the lands in question according to the court’s order.” Pursuant to section 64.061(3), any party who disagrees with the report may file an objection within ten days. Although the statute does not expressly state what occurs when an objection is filed, presumably the trial court would need to resolve the objection by conducting an evidentiary hearing and making findings of fact. In the event no objections are filed, the court must confirm the report and enter a final judgment “vesting in the parties the title to the parcels of the lands allotted to them.” § 64.061(3).

Section 64.061(4) explains the procedure when the parties agree that the property is indivisible without prejudice to the owners or if the court “is satisfied” that such an allegation is correct. That section reads:

APPOINTMENT OF SPECIAL MAGISTRATE WHERE PROPERTY NOT SUBJECT TO PARTITION. — On an uncontested allegation in a pleading that the property sought to be partitioned is indivisible and is not subject to partition without prejudice to the owners of it or if a judgment of partition is entered and the court is satisfied that the allegation is correct, on motion of any party and notice to the others the court may appoint a special magistrate or the clerk to make sale of the property either at private sale or as provided by s. 64.071.

In this case, the trial court relied upon this provision to appoint the clerk to conduct a public sale because it was “satisfied” that the property is indivisible without prejudice to one or both brothers.

Finally, section 64.071 is entitled “Sale where nondivisible.” Section 64.071(1) provides:

ORDER OF SALE. — If the commissioners report that the lands of which partition is directed are so situated that partition cannot be made without prejudice to the owners and if the court is satisfied that such report is correct, the court may order the land to be sold at public auction to the highest bidder by the commissioners or the clerk....

Nick argues that once a judgment of partition is entered pursuant to section 64.051, the trial court must appoint commissioners pursuant to section 64.061(1) to attempt to divide the property in kind. This interpretation, however, ignores the provisions of section 64.061(4), which allows the trial court to forego this procedure when it is “satisfied,” or when the parties agree, that the land is indivisible. Indeed, as Peter points out, the appointment of commissioners in this case would likely have been a futile act. One brother or the other was unquestionably going to object to the commissioners’ report, no matter what the recommendation. That objection would lead to an evidentiary hearing on the issue, at the end of which the trial court could order a sale by the clerk pursuant to section 64.071(1), just as it did here pursuant to section 64.061(4). On the other hand, under the procedure utilized by the trial court, if the trial court had determined that Nick was correct and that the property was divisible, then the trial court would have been required to appoint the three commissioners to study ways to partition the property. Under these circumstances, the evidentiary hearing provided the most efficient resolution to this dispute regarding the divisibility of the property. The partition statutes recognize and permit this procedure.

Section 64.071 is therefore not applicable in every partition procedure. Rather, it applies specifically when the court has initially appointed commissioners in an attempt to physically divide the property, only to have the commissioners conclude that this is not possible without prejudice to one or more parties. Nothing in this section prevents the trial court from making an initial determination on divisibility pursuant to section 64.061(4) when the circumstances merit such a procedure. We therefore affirm the trial court’s judgment.

Affirmed.

YILLANTI and WALLACE, JJ., concur.

      . The trial court obviously interpreted “satisfied” in this context to mean that it was required to hold an evidentiary hearing at which the movant, Peter, was required to establish by a preponderance of the evidence that the property was indivisible without prejudice to the owners. We agree with this reasonable interpretation.


author: PER CURIAM.

text:
    Herbert Leon MANAGO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2595.
    District Court of Appeal of Florida, Fifth District.
    Aug. 28, 2007.
    Herbert Leon Manago, Jr., Chipley, pro se.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Talla hassee, and Mary G. Jolley, Assistant At torney General, Daytona Beach, for Appel lee.
   PER CURIAM.

AFFIRMED. Tate v. State, 864 So.2d 44 (Fla. 4th DCA 2003); Phillips v. State, 807 So.2d 713 (Fla. 2d DCA 2002).

GRIFFIN, ORFINGER and TORPY, JJ., concur.


text:
    Verlinda JOHNSON, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D07-1050.
    District Court of Appeal of Florida, Fifth District.
    Aug. 28, 2007.
    Verlinda Johnson, Daytona Beach, pro se.
    Cathy McAllister, Assis. District Legal Counsel, Daytona, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

PALMER, C.J., PLEUS and ORFINGER, JJ., concur.


author: SILBERMAN, Judge.

text:
    Donna Wolf REYNOLDS, Petitioner, v. STATE of Florida, Respondent.
    No. 2D07-574.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 2007.

      William B. Fletcher of Fletcher & Pip-kin, an association of P.A.s, Sebring, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, As-' sistant Attorney General, Tampa, for Respondent.
   SILBERMAN, Judge.

Donna Wolf Reynolds seeks certiorari review of a nonfinal order denying a motion for a protective order and to quash a subpoena. The subpoena required her insurance company to produce a transcript of an examination under oath that Reynolds submitted to for her insurance company. We grant the petition on the basis of the attorney-client privilege.

On May 25, 2006, the State charged Reynolds with throwing a deadly missile into an occupied vehicle and aggravated battery based on an incident that occurred on April 27, 2006. Florida Farm Bureau (FFB) insures Reynolds, and the policy may provide coverage to her for civil damages that the other individual in the April incident allegedly suffered. As part of its investigation of the incident, FFB invoked the terms and conditions of its policy with Reynolds and required her to submit to an examination under oath. Present at the examination under oath on July 31, 2006, were Reynolds, her criminal defense counsel, William Fletcher, and the FFB claims adjuster. Fletcher objected to the examination under oath and initially attempted to invoke Reynolds’ Fifth Amendment right against self-incrimination, but then he allowed her to answer the questions.

After learning that FFB had conducted an examination under oath, the State issued a subpoena duces tecum to FFB and sought the transcript of the examination for use in the criminal prosecution. FFB and Reynolds objected to the production of the transcript, and FFB filed a motion, in which Reynolds joined, citing the work-product and attorney-client privileges and also asserting the Fifth Amendment privilege against self-incrimination. After a hearing, the trial court denied the motion for protective order and to quash the subpoena and ordered FFB to release the transcript to the State. In its order, the court addressed the work-product privilege and the Fifth Amendment privilege but failed to address the attorney-client privilege. On certiorari review, Reynolds claims that the attorney-client privilege is applicable and that the trial court should have quashed the subpoena.

To be entitled to certiorari relief regarding a nonfinal order granting discovery, the petitioner must show “ ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.’ ” Fassy v. Crowley, 884 So.2d 359, 363 (Fla. 2d DCA 2004) (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995)). Prongs two and three of the test are jurisdictional. Id. Here, the jurisdictional prongs are met in that disclosure of the transcript of the examination under oath would result in material injury that cannot be corrected on postjudgment appeal. Thus, the issue is whether the trial court departed from the essential requirements of the law in allowing the discovery.

We note that the State is incorrect in its assertion that Reynolds did not raise the issue of attorney-client privilege before the trial court. In FFB’s motion and at the hearing on the motion, counsel for FFB addressed the attorney-client privilege based upon Fletcher, Reynolds’ criminal defense counsel, being present at the examination under oath. During the hearing, FFB’s counsel also argued that the attorney-client privilege was not waived. Fletcher, who was present at the hearing, argued the Fifth Amendment privilege. At Fletcher’s request, the court allowed the parties ten days to provide memoranda and additional case law.

Reynolds’ counsel filed a memorandum, arguing that the trial court should quash the subpoena duces tecum “because the material requested constitutes attorney client privileged communications.” Counsel quoted from Vann v. State, 85 So.2d 133, 138 (Fla.1956) (quoting J.E. Macy, Annotation, Privilege of Communications or Reports Between Liability or Indemnity Insurer and Insured, 22 A.L.R.2d 659, 660 (1952)), including the following portion:

“According to the weight of authority, a report or other communication made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney so defending him.”

(Emphasis added.) Reynolds’ counsel added that “[t]he policy does require the company to defend her and the communication is intended for the information or assistance of the attorney in defending her.” In FFB’s original motion in which Reynolds joined, FFB asserted that the examination under oath “was taken as part of FFB’s investigation of the alleged incident.” FFB also noted that the examination “was taken in part to determine whether the insurer, FFB, might deny coverage or reserve its rights[.]”

Section 90.502, Florida Statutes (2006), provides that communications between a client and a lawyer for the purpose of the client obtaining legal services or the lawyer rendering legal services are privileged, with narrow exceptions. In Vann, the Florida Supreme Court recognized that a communication from the insured to the liability insurance company is privileged if the communication is intended for the purpose of assisting the insurance company’s attorney in defending the insured. 85 So.2d at 138. Vann did not state that it involved an examination under oath, and neither did Staton v. Allied Chain Link Fence Co., 418 So.2d 404 (Fla. 2d DCA 1982), the other case that Reynolds relies upon in her petition. However, these cases stand for the general proposition that included within the attorney-client privilege are communications the insured makes to the insurer for its use to fulfill its obligation to defend on the insured’s behalf. Vann, 85 So.2d at 138; Staton, 418 So.2d at 405-06.

In Grand Union Co. v. Patrick, 247 So.2d 474 (Fla. 3d DCA 1971), the plaintiff sought production of an accident report that the insured provided to the insurance company regarding the plaintiffs fall on the insured store’s premises. Citing Vann, the court held that the report was privileged because it was made by the insured “to its insurer, for investigation by the latter incident to fulfillment of its obligation to defend on behalf of the insured.” Id. at 474. The Grand Union court explained as follows:

The principle under which such reports by an insured to its insurer are privileged is that they are considered relevant to defense of the action and in effect are communications between attorney and client, being information which is to benefit the defense of the cause by counsel, passing through the insurer to counsel.

Id.; see also 17A Lee R. Russ, et al., Couch on Insurance 3d § 250:19 (2000) (citing Vann and Grand Union as representing “[w]hat appears to be a majority view ... that the attorney-client privilege applies to communications between an insured and its liability or indemnity insurer as to an incident possibly giving rise to liability covered by the policy”).

We recognize that the circumstances of FFB’s examination of Reynolds may reflect some adversarial characteristics. The presence of Reynolds’ criminal defense counsel and his initial attempt to invoke his client’s Fifth Amendment rights lends an adversarial element to the communications regarding whether coverage exists. But Reynolds ultimately submitted to the examination under oath to comply with her obligations under the insurance policy. The examination is part of the insurer’s fact-gathering for the dual purposes of (1) defending the insured and (2) determining whether the policy covers the incident giving rise to the claim against the insured. If the insurer denies its duty to defend or denies coverage, then a true adversarial relationship may exist. Here, Reynolds gave the examination under oath as required in a cooperative effort between the insured and the insurer. Pursuant to Vann, Staton, and Grand Union, the attorney-client privilege is applicable under these circumstances.

Therefore, we conclude that the trial court departed from the essential requirements of the law in allowing the discovery. We grant Reynolds’ petition and quash the trial court’s order that requires FFB to release the transcript of the examination under oath.

Petition granted and order quashed.

WHATLEY, J., and ANDREWS, HORACE A., Associate Senior Judge, Concur.

      . FFB’s counsel recognized at the hearing on the motion for protective order and to quash subpoena that Reynolds answered the questions because she "understood that if she did not sit for the examination under oath that she would be potentially waiving her insurance coverage."


author: FULMER, Judge.

text:
    Edward CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-105.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 2007.

      James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

A jury found Edward Clark guilty of burglary, robbery, false imprisonment, aggravated battery, and battery. We affirm Clark’s judgment and sentence without comment on the two trial-related issues that he raised on appeal. However, we reverse as to four of the monetary charges imposed by the court at sentencing.

Clark preserved his challenges to the four monetary charges (variously denominated as surcharges, costs, or fines) in a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court did not rule on the motion within sixty days, so it is deemed denied. Fla. R.Crim. P. 3.800(b)(2)(B), (b)(1)(B).

The first two items challenged by Clark are surcharges of $150 and $2 imposed under section 938.085, Florida Statutes (creating a surcharge to fund rape crisis centers), and a court cost of $65 imposed under section 939.185, Florida Statutes (creating an “additional court cost” assessable by the board of county commissioners). Section 938.085 became effective on July 1, 2003. See ch.2003-114, §§ 3, 5, Laws of Fla. Section 939.185 became effective on July 1, 2004. See ch.2004-265, §§ 88, 109, Laws of Fla. The offenses of which Clark was convicted occurred on October 18, 2002. This court’s precedent precludes the imposition of these two costs because the authorizing statutes became effective after the date of the offenses. See Griffin v. State, 946 So.2d 610, 614-15 (Fla. 2d DCA 2007). On remand, the $152 surcharge and the $65 cost shall be stricken.

The third item challenged by Clark is $150 and $130 in prosecution and sheriffs investigative costs imposed pursuant to section 938.27, Florida Statutes (2002). Clark alleges two errors with respect to these costs: that there was no request for costs from the two relevant agencies, see § 938.27(1), and that the court failed to consider Clark’s financial resources and ability to pay, see § 938.27(5). Our precedent requires that costs imposed under the 2002 version of section 938.27 be stricken when either of these conditions has not been satisfied. See, e.g., Taylor v. State, 821 So.2d 404, 405 (Fla. 2d DCA 2002) (no request for costs); Thibault v. State, 945 So.2d 646, 647 (Fla. 2d DCA 2006) (court’s failure to inquire into defendant’s financial resources). On remand, the court shall strike the two costs but may reimpose them if the requisites of section 938.27, Florida Statutes (2002), are satisfied, in particular the requirements that the agencies request the costs and provide supporting documentation and that the court considers Clark’s financial resources and ability to pay. See Taylor, 821 So.2d at 405; Thibault, 945 So.2d at 647.

Finally, Clark challenges the imposition of a $50 fine pursuant to section 775.083(2), Florida Statutes. The 2002 version of this statute reads, in pertinent part:

The fine is $50 for a felony and $20 for any other offense. When the defendant enters the plea or is convicted or adjudicated, in a court in that county, the court may order the defendant to pay such fine if the court finds that the defendant has the ability to pay the fine and that the defendant would not be prevented thereby from being rehabilitated or making restitution.

§ 775.083(2)(b) (emphasis added). As with the previous cost item, on remand the trial court shall strike the $50 fine but may reimpose it if the court finds that Clark has the ability to pay. See Gonzalez v. State, 939 So.2d 224, 225 (Fla. 2d DCA 2006).

As we did in Griffin v. State, 946 So.2d at 614-15, we certify conflict with Ridgeway v. State, 892 So.2d 538 (Fla. 1st DCA 2005) (concluding that imposing the cost required by section 939.185 on a defendant who committed his crime before its effective date did not violate the constitutional prohibition against ex post facto laws).

Reversed and remanded; conflict certified.

DAVIS and WALLACE, JJ., Concur.

      . The statute actually imposes a surcharge of $151.

      . The second requirement was deleted effective July 1, 2003. See ch.2003-402, §§ 127, 155, Laws of Fla.

      . The 2002 version of section 938.27 provides that investigative costs shall be assessed "if requested and documented" by the relevant agencies. The words "and documented” were deleted from the statute as of July 1, 2003. See ch.2003-402, §§ 127, 155, Laws of Fla.

      .This statute was amended effective July 1, 2003, such that the factual findings on the defendant’s ability to pay are no longer required. See ch.2003-402, §§ 117, 155, Laws of Fla. Additionally, the charge is called a "court cost” in the amended statute. § 775.083(2), Fla. Stat. (2004).


author: SALCINES, Judge.

text:
    James BAIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5186.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 2007.
   SALCINES, Judge.

James Bain appeals the summary denial of his motion for DNA evidence examination and his pro se motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We affirm the postcon-viction court’s denial of the motion for DNA evidence examination. We reverse the denial of the Bain’s pro se motion for DNA testing and remand for further proceedings.

On May 23, 1974, Bain was convicted of rape, burglary with an assault, and kidnapping after a jury trial. On September 30, 2003, Bain filed a rule 3.853 motion, which the postconviction court dismissed without prejudice to Bain filing a facially sufficient motion. On May 23, 2006, more than two years later, Bain filed the rule 3.853 motions that are the subject of this appeal. In summarily denying both motions, the postconviction court found that they were untimely, in part because Bain’s delay in refiling was an abuse of process.

However, due to an amendment to section 925.11, Florida Statutes, enacted on June 23, 2006, no time limit applies to rule 3.853 motions for postconviction DNA testing filed on or after October 1, 2005. See Ch. 2006-292, §§ 1, 4, at 2204-7, Laws of Fla. (codified in § 925.11, Fla. Stat. (2006)). Moreover, in dismissing Bain’s 2003 rule 3.853 motion without prejudice, the postconviction court set no filing deadline. Consequently, the postconviction court erroneously denied the 2006 motions as untimely. See Jumper v. State, 903 So.2d 264 (Fla. 2d DCA 2005) (holding that postconviction court could not deny a refilled rule 3.850 motion as untimely when postconviction court did not set a filing deadline in dismissing defendant’s first rule 3.850 motion without prejudice to refiling.)

Because Bain timely filed his pro se motion for DNA testing the postconviction court should have addressed the motion on the merits. Accordingly, on remand, the postconviction court shall require the State to respond and, if necessary, hold an evi-dentiary hearing in this matter. See Fla.R.Crim. P. 3.853; Girley v. State, 935 So.2d 55 (Fla. 1st DCA 2006).

Although Bain’s motion for DNA evidence examination also was timely, it is facially insufficient. Ordinarily, a facially insufficient rule 3.853 motion should be dismissed or denied without prejudice to the refiling of a facially sufficient motion. See, e.g., Harvey v. State, 925 So.2d 1111 (Fla. 2d DCA 2006); Lemay v. State, 921 So.2d 853 (Fla. 2d DCA 2006); Scarborough v. State, 906 So.2d 379 (Fla. 2d DCA 2005). However, Bain requests the same relief for the same reasons in both motions. In light of our holding on Bain’s pro se motion for DNA testing, we affirm the postconviction court’s denial of Bain’s motion for DNA evidence examination.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and KELLY, JJ., Concur.


text:
    Irene VAUGHAN, Brett Boerckel and Robert Boerckel, Appellants, v. Mary BOERCKEL, individually, as personal representative of the Estate of Eldert W. Boerckel, deceased, and as successor trustee under the Eldert W. Boerckel Irrevocable Trust dated August 18, 1993 as Amended and Restated on July 6, 2000, Appellee.
    No. 4D06-1127.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Rehearing Denied Oct. 5, 2007.
    Arthur J. Morburger, Miami, and Carl M. Collier, Lake Worth, for appellants.
    Theodore S. Kypreos and H. Michael Easley of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appel-lee.
   PER CURIAM.

The appellants, Irene Vaughan, Brett Boerckel, and Robert Boerckel appeal from a final summary judgment entered in favor of the appellee, Mary Boerckel, the personal representative and successor trustee of the Estate of Eldert W. Boerck-el (Decedent). We affirm because the subject real property did not become a part of the corpus of the trust through the pour-over provision of the Decedent’s will due to the Decedent’s failure to execute the appropriate deeds.

Decedent died a resident of Palm Beach County, Florida, on May 28, 2003. He was survived by his second wife, appellee Mary Boerckel, his children, appellants Robert Boerckel and Irene Vaughan, and several grandchildren, including appellant Brett Boerckel. On July 6, 2000, approximately three years prior to his death, Decedent executed an “Amendment Dated July 6, 2000 Amending and Restating The Declaration of Trust of Eldert W. Boerckel Dated August 18, 1999” (Trust). Decedent likewise executed his Last Will and Testament (Will) on July 6, 2000. Decedent’s Will was admitted for Probate Administration in Palm Beach County on June 23, 2003. Pursuant to Article I of the Will, Mrs. Boerckel was appointed Personal Representative of Decedent’s Estate, and his grandchild, appellant Brett Boerckel, was appointed as the alternate Personal Representative. Mrs. Boerckel also serves as Successor Trustee of the Trust and Brett Boerckel as an alternate Successor Trustee.

Decedent’s Will is a “pour-over” will, which, pursuant to its terms, devises the residue of his estate to the Trust. The pour-over provision reads:

V. I GIVE, DEVISE AND BEQUEATH all of the rest, residue and remainder of my estate, including property which I may have the power to dispose of at my decease, to that person or those persons, including any corporation, that at the time of my death are serving as Trustee or Trustees under that instrument of Trust executed by me as Settlor and Trustee, prior to the execution of this, my LAST WILL AND TESTAMENT, and entitled THE ELDERT W. BOERCKEL TRUST dated August 18, 1993 as the same may have been amended. This gift, devise and bequest is to be added to the property then held in that Trust and shall become part of the corpus thereof. It is to be held in accordance with the terms and conditions of that Trust as now written and as hereafter amended, and to that end, I direct that this gift, devise, and bequest to the [sic] be interpreted by reference to that Trust instrument. If for any reason that Trust is not in force at the time of my death, or if this gift, devise and bequest to the then Trustee or Trustees of that Trust is held invalid, then I direct that this gift, devise and bequest shall be held and managed in exactly the manner described in that instrument of Trust now in existence or as amended by me prior to my death, and by the same Trustee or Trustees, and for that purpose only, I hereby incorporate that instrument of Trust, as it now stands, by reference into this, my LAST WILL AND TESTAMENT.

It is undisputed that at the time of his death, Decedent owned 100% of the corporate stock of the Eloise Management Corporation, Inc., a New York Corporation (Eloise) and was its sole officer. At the time of the execution of the Trust and Will and also at the time of the Decedent’s death, Eloise’s primary assets were five real properties located in New York State (Properties). The Trust directs the distribution of the Properties as follows:

7.3. Upon my death, the Trustee shall distribute the then Trust Estate as follows:
a) I or the ELOISE MANAGEMENT CORPORATION, INC., a New York corporation wholly owned by me, are the owners of certain real property situated in the State of New York, as follows:
(i) 1430 Omega Street, Elmont, New York;
(ii) 1422 Omega Street, Elmont, New York;
(iii) 217 Franklin Avenue, Franklin Square, New York;
(iv) 205 Franklin . Avenue, Franklin Square, New York;
(v) 20 Ronald Avenue, Hicksville, New York.
b) Upon my death, I direct that my Trustees distribute to my wife, MARY INTERLANDI, to have sole use and possessions during her lifetime, the real property situated at 1422 Omega Street, Elmont, New York, together with the furniture and furnishings therein contained. Upon her death or upon my death if she shall predecease me, said real property and contents shall be distributed to my grandson, BRETT BOERCKEL, outright and free of trust.
c) Upon my death, I direct that my Trustees distribute the real property situated at 1430 Omega Street, Elmont, New York, together with the furniture and furnishings therein contained, to my daughter, IRENE VAUGHAN, outright and free of trust. If IRENE VAUGHAN shall predecease me, then said real property shall be distributed to my grandson, CRAIG FIELDING.
d) Upon my death, the Trustees shall distribute the real property at 20 Ronald Avenue, Hicksville, New York, together with the furniture and the furnishings therein to my son, ROBERT BOERCK-EL, outright and free of trust.
e) Upon my death, the Trustees shall distribute the real property at 217 Franklin Avenue, Franklin Square, New York, together with the furniture and the furnishings therein to my grandson, BRETT BOERCKEL, outright and free of trust.
f)Upon my death, the Trustees shall distribute the real property at 205 Franklin Avenue, Franklin Square, New York, together with the furniture and furnishings therein to my grandson, BRETT BOERCKEL, outright and free of trust.

The Trust goes on in Paragraphs 7.3(g)-(h) to direct the trustees to distribute real property in Delray Beach, Florida, to Mrs. Boerckel. Decedent executed deeds conveying the Florida Properties referred to in Paragraphs 7.3(g)-(h) from himself to the Trust. Thus, only the distribution in Paragraphs 7.3(b)-(f) is at issue on appeal.

Furthermore, Paragraph 7.4(a) devised the residue of the Trust estate, in this case the Eloise stock, to Mrs. Boerckel:

7.4(a). All the rest, residue and remainder of the trust estate shall be distributed to my wife, MARY INTERLANDI if she shall survive me, and if she shall not survive me, then to my children, IRENE VAUGHAN and ROBERT B. BOERCKEL, in equal shares, per stirpes.

Following Decedent’s death, petitioners Irene Vaughan, Brett Boerckel, and Robert Boerckel filed a Petition for Removal of Personal Representative and For the Assessment of a Surcharge and For Declaratory Relief (Petition) against Respondent, Mrs. Boerckel, individually and as personal representative of the Estate of the Decedent. In Count I of the Petition, petitioners sought to remove and surcharge Mrs. Boerckel as Personal Representative of the Decedent’s Estate. The petitioners alleged that Mrs. Boerckel wasted the estate assets and mal-adminis-tered the estate by knowingly filing an erroneous federal estate tax return that improperly listed as a marital deduction the Properties to be distributed to the children under Paragraph 7.3(a)-(f) of the Trust, in which she had no interest. In Count II of the Petition, the petitioners sought a declaratory judgment with respect to the proper succession of the Properties. Petitioners alleged that Mrs. Boerckel took the erroneous position that because the Properties had not been transferred to the Trust by deed during the lifetime of the Decedent, they could not pass under the Trust, but rather would pass to Mrs. Boerckel incident to the distribution of the Eloise stock to her by virtue of the residuary clause in Paragraph 7.4(a) of the Trust. Petitioners asked the court to determine “the duty of the successor trustee, Mary Boerckel, under Paragraph 7.3(a) through (f) of the Trust and the mechanism by which the successor trustee is to carry out the express intent of the decedent, Eldert W. Boerckel, as set forth in Paragraph 7.3(a) through (f) of the Trust.”

Petitioners deposed Fred Weinstein, Esq., the Decedent’s estate-planning attorney who prepared both Decedent’s Will and the Trust. Weinstein testified that at the time the Trust was written, the Properties were not in the Trust, and prior to the Trust being signed, it was indicated that Weinstein would prepare deeds conveying the New York Properties from Decedent to the Trust. Weinstein testified that at the time the Trust was signed, Decedent’s intent was to have the Properties go to the named distributees. However, after the Trust was signed, Weinstein prepared such deeds and advised Decedent that the failure to sign the deeds “would defeat the purpose of the rest of the Trust,” but Decedent refused to sign the deeds.

Mrs. Boerckel filed a motion for summary judgment, arguing that because Decedent failed to execute the deeds transferring the Properties from Eloise either to himself, individually, or to the Trust, the Properties were owned by Eloise at the time of Decedent’s death and thus did not become a part of the corpus of the Trust. Because the Properties did not pass to the Trust, Paragraphs 7.3(a)-(f) of the Trust were ineffective, and the Eloise stock passed to Mrs. Boerckel as part of the residue of the Trust under Paragraph 7.4(a). Therefore, Mrs. Boerckel argued that she properly filed the tax return reflecting the subject Properties as passing to her and was entitled to summary judgment as a matter of law as to both counts of the Petition.

The trial court granted summary judgment in favor of Mrs. Boerckel as to Counts I and II. The trial court concluded that the Properties never became a part of the Estate. This was because the Properties were owned by Eloise, and the Eloise stock was owned 100% by the Decedent. Thus, it was the Eloise stock, not the Properties, that passed to the Trust from the residue of the Decedent’s Estate. In other words, the Properties did not become a part of the corpus of the Trust through the pour-over provision because the Decedent failed to execute the deeds necessary to result in the Properties funding the Trust. Consequently, the provisions of Paragraph 7.3(a)-(f) of the Trust were ineffective, and the Eloise stock passed to Mrs. Boerckel as part of the residue of the Trust pursuant to Pára-graph 7.4(a) of the Trust. The trial court concluded that the Decedent’s failure to execute the deeds prevented the court from creating a “mechanism” to convey the real estate from Eloise to the Trust. Likewise, the trial court found that Mrs. Boerckel committed no error in her preparation and filing of the tax return, and that the petitioners failed to present any evidence suggesting Mrs. Boerckel caused any waste to the Estate. The trial court concluded that there was no genuine issue of material fact and that Mrs. Boerckel was entitled to judgment as a matter of law on both counts.

The appellants argue on appeal that the trial court erred in concluding that the Decedent’s refusal to execute deeds transferring the Properties to the Trust prevented the court from creating a “mechanism” that would require the trustee, Mrs. Boerckel, to cause Eloise to convey the Properties to the Trust resulting in a distribution to the appellants in accordance with Paragraph 7.3 of the Trust. According to the appellants, the stock of Eloise is to be transferred to the Trust through the pour-over provision of the Will, and Mrs. Boerckel, as trustee and sole shareholder/president of Eloise, will then take the necessary steps to cause Eloise to deed the Properties as directed in Paragraphs 7.3(b)-(f). Appellants contend that only after distribution of the Properties will Mrs. Boerckel be entitled to transfer to herself, as residuary beneficiary under 7.4(a), the corporate stock. Therefore, appellants conclude that the “mechanism” that the trial court found to be unavailable was readily accessible to Mrs. Boerckel, as trustee. Consequently, appellants argue that Mrs. Boerckel’s listing of the Properties as having been inherited by her in fee for the purpose of the marital tax deduction was improper, and there would be genuine issues of material fact as to whether she should be removed and surcharged for the resulting damage to the Estate. Thus, summary judgment was improper as to Count I as well.

In response, Mrs. Boerckel argues that because legal title to the Properties was never properly conveyed by deed, the Properties remained owned by Eloise. Consequently, the Properties did not become a part of the Decedent’s Estate and thus a part of the Trust’s corpus, and the Trust’s provisions in paragraph 7.3(a)-(f) do not govern the disposition of the property. Rather, Mrs. Boerckel contends that the Eloise stock poured over into the Trust from the Decedent’s Will and passed to Mrs. Boerckel pursuant to Paragraph 7.4(a) of the Trust.

Summary judgment is appropriate where, as a matter of law, it is apparent from the pleadings, depositions, affidavits, or other evidence that there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law. The Florida Bar v. Greene, 926 So.2d 1195, 1200 (Fla.2006). A ruling on a motion for summary judgment is subject to de novo review. Id.

In support of their argument, the appellants cite State v. North, 159 Fla. 351, 32 So.2d 14 (1947), and other similar cases from jurisdictions outside of Florida. In North, the decedent devised in his will to the State of Florida his art museum together with all the paintings, pictures, and works of art contained in the museum as well as all objects of art which at the time of his death were held in the name of the Rembrandt Corporation. Id. at 14. The court upheld the devise, concluding that the decedent had the power to dispose of all of the capital stock of the Rembrandt Corporation under his will, and that it was the decedent’s intention and legal effect of the will to pass and bequeath all of the capital stock in the Rembrandt Corporation to the State of Florida. Id. at 19. The court also reasoned that the decedent created and maintained the Rembrandt Corporation for his own use and convenience, that the corporation had no creditors and no assets other than the art works, and that the decedent was at all times president of and owned all of the stock in and all of the assets of the corporation and therefore had a right to view the property as his own and thus transferable by his will. Id.

However, North is distinguishable because North does not involve the creation of a trust, but rather the validity of a devise under a testator’s will with respect to corporately-owned property. In contrast, in the instant case, the Properties were not devised by will; rather, the appellants’ argument is that the Properties, owned by Eloise, and its stock, being 100% owned by the Decedent, passed through the Will’s pour-over provision, as part of the Decedent’s Estate, and into the Trust and thereafter were to be distributed in accordance with Paragraph 7.3(b)-(f) of the Trust. Furthermore, the Properties, although also corporately owned as in North, are real property, in contrast to the artwork in North, and were never properly conveyed to the Decedent’s Estate by deed. The North decision also fails to provide any instruction concerning the “mechanism” by which Mrs. Boerckel can carry out the distribution set forth in Paragraphs 7.3(a)-(f) of the Trust.

Appellants also argue that Fidelity Union Trust Co. v. Vander Roest, 113 N.J. Eq. 368, 166 A. 918 (1933), is instructive. In Fidelity Union, the corporation that owned the to-be-distributed realty was wholly-owned by the testator, and in the will codicil, the testator devised the realty to his son. Id. at 919. The testator had also by will devised the remainder of his estate to his trustee to pay the income to his son for ten years. Id. The court held that a devise of the realty to the testator’s son under a codicil to the testator’s will would not effectuate a legal transfer of title because the title was held not by the testator but by the corporation, and the “corporate fiction” could not be disregarded. Id. However, the court concluded that the trustee, to whom the corporate stock was devised, could cause the corporation to convey the realty to the son, whether by dissolving the corporation or otherwise. Id. Again, the instant case is distinguishable because there is no indication that Fidelity Union involved a pour-over will, and the realty in Fidelity Union was devised by the will codicil rather than a trust.

Appellants also argue that the trust in question was incorporated by reference into the will, and therefore, the trust provisions became testamentary. Appellants cite In re Estate of Potter, 469 So.2d 957, 959 (Fla. 4th DCA 1985), where this Court held, “When the trust is incorporated by reference into a will, they should be construed together in determining the decedent’s intent. As a peripheral consequence, the trust provisions then become testamentary dispositions so as to entitle us to use testamentary terms in describing them.” However, the Decedent refused to execute the appropriate deeds that would have conveyed the subject property to the corpus of the Trust through the pour-over provision of the Will. An express trust cannot exist unless there is an expression of an intent by the parties to create a trust, and a transfer of legal ownership in the subject property to the trustee. Gibson v. Resolution Trust Corp., 750 F.Supp. 1565, 1571 (S.D.Fla.1990). “It is essential that a trust have a corpus or there can be no valid present trust ... The failure to provide a trust corpus would negate the existence of a trust.” J. Grimsley, Florida Law of Trusts § 9-1 (4th ed.). Furthermore, although it is undisputed that the Eloise stock became a part of the inventory of the Estate and passed to the Trust through the pour-over provision of the Will and to Mrs. Boerckel under Paragraph 7.4(a), the sole shareholder/trustee, appellants failed to provide any support for their argument that Mrs. Boerckel can simply cause the corporation to deed the properties as directed in Paragraphs 7.3(b)-(f).

We conclude that this case is more analogous to Flinn v. Van Devere, 502 So.2d 454 (Fla. 3d DCA 1986), wherein the Third District concluded that realty owned by the decedent was not validly transferred to a trust she established during her lifetime and thus remained an estate asset and the property passed under the residuary clause of her will rather than the trust. Id. at 454. The court held that the decedent’s execution of a form instrument creating a standard inter vivos “living trust” of property owned by her and listed in an accompanying schedule was ineffective with respect to the real estate described because the settlor did not, as is required, also execute a deed which conveyed the realty to the trustees. Id. at 455. The court explained that the trust documents themselves plainly cannot be regarded as such a deed “for the obvious reason that, although they comply with the necessary formalities of two witnesses and an adequate legal description, they contain no expression which purports to convey, grant or transfer the real estate.” Id. The court also reasoned that the “only reference in the simultaneously executed will to the trust is the direction that the personal representative make demand upon the trustees for the trust’s share of any estate taxes.” Id. The court found this language to be clearly insufficient to manifest an intention to incorporate the provisions of the trust for the disposition of the assets after the settlor’s death into the will, so as to render them, in effect, testamentary in nature. Id. at 455-56. The court noted that such a result was required even though it would run contrary to the decedent’s “actual desires and intentions.” Id. at 456. Even though the Will in this case did incorporate the Trust instrument by reference, the property in Flinn was not corporately-owned as in this case, and the corporate existence cannot be disregarded.

In sum, we conclude that the trial court did not err in finding that Mrs. Boerckel was entitled to summary judgment as a matter of law as to Counts I and II of the Petition. The Properties never became a part of the corpus of the Trust because the Decedent failed to execute the deeds that would have resulted in a funding of the Trust, thereby causing Paragraphs 7.3(a)-(f) to lapse. The Final Summary Judgment in favor of Mrs. Boerckel is affirmed.

Affirmed.

GUNTHER, FARMER and MAY, JJ., concur.

      . Thereby allowing the Properties to pass to the Trust pursuant to the pour-over provision of the Will.

      . Thus making the Properties part of the corpus of the Trust.


text:
    Lauren ANSCHER, Appellant, v. LEBENTHAL & CO., a division of Advest, Inc., Appellee.
    No. 3D07-901.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.

      Hall, Lamb and Hall and Andrew C. Hall; Julian H. Kreeger, Miami, for appellant.
    Bressler, Amery & Ross and Alex J. Sabo, Miramar, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

Lauren Anscher appeals an order dismissing an adversary proceeding brought in the probate division of the circuit court on the ground that there exists an identical action filed by her, albeit removed to the United States District Court for the Southern District of Florida, in the general jurisdiction division of the same court. We affirm the dismissal on the unique facts of this case.

Lauren Anscher is the surviving spouse of Bernard Anscher, who died on September 4, 2002. According to an amended adversary proceeding filed in the probate division of the circuit court below, Bernard executed and mailed a written instruction to his brokerage firm, Lebenthal & Co., to transfer certain securities out of a trust, in which he was the grantor, to his wife just two days before his death. The adversary complaint continues that on the day after Bernard died, Joseph Anscher, as successor co-trustee of the trust, called Leben-thal and directed Bernard’s broker not to execute the decedent’s directive. Leben-thal did not do so. In the adversary proceeding, Lauren sued the estate, trustees of the trust, and Lebenthal to effectuate the transfer and for separate additional damages against Lebenthal for failure to honor the decedent’s instruction.

In June 2003, Lauren settled her claims with the estate and trustees of the trust, expressly excluding Lebenthal from the settlement. In August 2006, Lauren apparently became concerned the remaining probate claim against Lebenthal would no longer be characterized as adversarial, see In re Estate of Beeman, 391 So.2d 276, 278-79 (Fla. 4th DCA 1980)(noting that to qualify as an adversary proceeding in probate court, an action must relate to the administration of an estate or guardianship or must be determined by the trial court to be an adversarial proceeding), and therefore be dismissed once the statute of limitations had passed on the claim. Lauren filed a self-described “virtually identical” action against Lebenthal in the general jurisdiction division of the circuit court. After Lebenthal removed this action to the United States District Court for the Southern District of Florida and a motion to remand was denied, Lauren, for her own reasons, acceded to a stay of the federal action and accelerated her prosecution of the remaining probate case, prompting Le-benthal’s motion to dismiss and the order on appeal.

The probate court should have transferred the probate action rather than grant the motion to dismiss. Fort v. Fort, 951 So.2d 1020, 1022 (Fla. 1st DCA 2007); Payette v. Clark, 559 So.2d 630, 638 (Fla. 2d DCA 1990). However, in filing her self-described “virtually identical” action in the circuit court’s general-jurisdiction division, Lauren effectively transferred the case of her own volition. Particularly mindful that Lauren did not aggressively pursue the probate case until after the general jurisdiction case was removed, we also find, on the unusual facts of this case, that the probate court’s order of dismissal was harmless. See Kingsley v. Kingsley, 623 So.2d 780, 785 (Fla. 5th DCA 1993)(holding that trial court’s error in allowing an improper petition was rendered harmless by the fact that other proper petitions for the same action were filed as well). To conclude otherwise would violate the spirit of our rules of procedure, and disrespect the principles of comity underlying removal jurisdiction. See Maseda v. Honda Motor Co., 861 F.2d 1248, 1254 (11th Cir.1988)(“[A]fter removal, the jurisdiction of the state court absolutely ceases and the state court has a duty not to proceed any further in the case.”); Lowe v. Jacobs, 243 F.2d 432, 433 (5th Cir.1957)(“[A] state court ... loses all jurisdiction after compliance with the removal statute, until there has been a remand.”).

We are unmoved by Lauren’s concern that the dismissal leaves unresolved pending discovery, sanction motions, or delays the conclusion of the case. In denying Lauren’s motion for remand almost a year ago, the learned United States District Judge announced that “if [the probate court] doesn’t proceed and dismisses [the] case in the adversary proceeding, then I’m prepared on the motion for either side to open up this case and set it down for trial as quickly as you all want it.” We take him at his word. To whatever extent there might be unresolved discovery issues, we note that the facts upon which those issues are joined transpired almost entirely after the petition for removal of the general jurisdiction case was filed.

Affirmed.


text:
    J.E., Appellant, v. The DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D06-2887.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.
    Kevin Coyle Colbert, Miami, for appellant.
    Karla Perkins, Assistant District Legal Counsel, for appellee, Department of Children and Family Services.
    Hillary S. Kambour, for appellee, Guardian Ad Litem.

      Before GERSTEN, C.J., and SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

J.E. (“mother”) appeals from an order terminating her parental rights. We affirm.

Because the order terminating the mother’s parental rights to her minor son, R.E., pursuant to sections 39.806(l)(c) and (e), Florida Statutes (2006), was supported by competent and substantial evidence, we affirm. See W.N. v. Dep’t of Children & Family Servs., 919 So.2d 589 (Fla. 3d DCA 2006); M.M. v. Dep’t of Children & Family Servs., 867 So.2d 573 (Fla. 3d DCA 2004); E.K.B. v. Dep’t of Children & Families, 724 So.2d 720 (Fla. 3d DCA 1999).

Affirmed.


author: PER CURIAM. COPE, J.

text:
    Jeffrey MELTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1462.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.
    Rehearing Denied Sept. 26, 2007.
    Jeffrey Melton, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

COPE, J.

(concurring).

This is an appeal of an order denying appellant’s motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The appellant is correct that the trial court erred insofar as the court denied his motion on the ground of time bar. That is so because in earlier proceedings in this court, the State conceded that the appellant had filed a Rule 3.850 motion on November 21, 2005, which was duly docketed but then lost prior to obtaining a ruling. This court granted the appellant leave to refile the motion. Therefore the refilled motion related back to the original filing date of November 21, 2005 — which was timely.

I concur in affirmance, however, because the trial court also denied the motion now before us as being successive. That ruling was correct. We may take judicial notice of our own files. After taking judicial notice of this court’s files in No. 3D06-79 and in Melton v. State, 908 So.2d 1136 (Fla. 3d DCA 2005), it is clear that appellant filed an earlier Rule 3.850 motion which was decided on the merits. The appellant has not shown in the current motion any ground for relief from the bar of successiveness. See Owen v. Crosby, 854 So.2d 182, 187 (Fla.2003). The fact that this court granted the appellant leave to refile was intended to cure the fact that the 2005 motion was lost and never ruled on, through no fault of the appellant. However, the order granting leave to refile did not address the issue of successiveness and did not preclude the trial court from considering any applicable procedural bar.


text:
    Thomas BUDAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1778.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.
    Thomas Budas, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. Supp. P. 9.141(b)(2)(D).

We agree with the trial court on the denial of claims one, five, six, seven, and eight.

The defendant contends in substance that his trial counsel was ineffective by failing to adequately challenge the ownership of certain drugs recovered in the car occupied by the defendant and codefen-dant, and in the home of the codefendant. The codefendant testified that the drugs belonged to the defendant. The defendant has outlined steps he maintains that his counsel could and should have taken to demonstrate that the drugs actually belong to the codefendant. The defendant contends that had this been done, it would have resulted in a lower level of felony conviction and lower sentence in the defendant’s case.

The only issue before us at this time is whether the postconviction record now before us conclusively refutes the defendant’s claim, and it does not. We therefore reverse the order now before us with regard to claims two, three, and four, and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.


text:
    Emmanuel CHARLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3972.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Emmanuel Charles, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   On Mandate From the Supreme Court of Florida.

PER CURIAM.

In light of the supreme court’s decision in State v. Vickery, 961 So.2d 309 (Fla.2007), quashing this Court’s opinion in Charles v. State, 890 So.2d 542 (Fla. 4th DCA 2005), and remanding for further consideration, we affirm the summary denial of appellant’s post-conviction claims, including his claim of ineffective assistance of trial counsel for failure to request lesser-included offenses. See Sanders v. State, 847 So.2d 504 (Fla. 1st DCA 2003) (en banc), approved, 946 So.2d 953 (Fla.2006).

KLEIN, STEVENSON and GROSS, JJ., concur.


text:
    Roshell THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-880.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. However, we remand the case to the trial court with directions to enter a corrected written judgment, reflecting that the appellant was found to have violated probation after a hearing, rather than reflecting that he entered a plea admitting violating supervision.

SHAHOOD, C.J., STONE and KLEIN, JJ., concur.


text:
    Danielle Shaumika FLORENCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1299.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Danielle Shaumika Florence, Fort Laud-erdale, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Julie D. Lindahl, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the order denying appellant’s Florida Rule of Criminal Procedure 3.800(a) motion. The trial court failed to attach portions of the record that refute appellant’s claim that she is entitled to credit for time previously served in prison prior to her violation of probation. Martone v. State, 922 So.2d 404 (Fla. 4th DCA 2006); Fla. R.App. P. 9.141(b)(2)(D). We remand for the trial court to attach portions of the record that conclusively refute the appellant’s claim or for any other appropriate relief.

GUNTHER, WARNER and TAYLOR, JJ., concur.


author: STONE, J.

text:
    Chanel NOMNOMBRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1625.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Chanel Nomnombre, Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STONE, J.

Chanel Nomnombre appeals from the summary denial of his motion for post-conviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. The trial court denied Nomnombre’s motion as untimely and as lacking a sufficient oath. The trial court did not address the merits or sufficiency of the claim. We find that Nomnombre’s motion was not untimely and it included the sufficient alternative oath permitted by Florida Rule of Criminal Procedure 3.987 associated with rule 3.850 motions. Accordingly, the case is reversed and remanded to the trial court for further review of the motion.

KLEIN and MAY, JJ., concur.

      . By the time the motion was filed, in December 2006, the time limit had been deleted from the rule. See In Re Amendments to Florida Rule of Criminal Procedure 3.853(d), 938 So.2d 977 (Fla.2006).


text:
    Reginald WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2409.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Reginald Williams, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant filed a motion to correct an illegal sentence, apparently desiring additional jail credit. However, his motion alleged that the court gave credit for 155 days, and he does not allege that he was entitled to more than that. The trial court correctly denied the motion.

We affirm. If appellant’s real claim is that the Department of Corrections has not properly given him credit, then he must first pursue administrative remedies through the Department of Corrections.

WARNER, KLEIN and STEVENSON, JJ., concur.


text:
    Anibel VELASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4218.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Simms v. State, 949 So.2d 373, 375 (Fla. 4th DCA 2007); Altieri v. State, 835 So.2d 1181 (Fla. 4th DCA 2002).

SHAHOOD, C.J., WARNER and STEVENSON, JJ., concur.


text:
    Dwayne Lee NEWTON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-2556.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Dwayne Lee Newton, Stuart, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is granted. See Alexander v. Judd, 930 So.2d 847 (Fla. 2d DCA 2006). The trial court could not rely on the violation of conditions of pretrial release in a prior case to categorically deny pretrial release in this case. Id.; see § 903.0471, Fla. Stat. (2006). If it has not already done so, the trial court shall hold a bond hearing and consider pretrial release for this case. If the state moves for pretrial detention and the statutory requirements are met, the court may order petitioner detained without bond in this case. See § 907.041(4)(c), Fla. Stat. (2007).

KLEIN, STEVENSON and GROSS, JJ., concur.


text:
    Mister HAWK, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2076.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2007.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Roberts v. State, 923 So.2d 578, 580 (Fla. 5th DCA 2006) (“A mistrial is warranted only when an error is so prejudicial that it vitiates the entire trial.”); Waldo v. State, 728 So.2d 280, 281 (Fla. 3d DCA 1999), quashed on other grounds, 759 So.2d 674 (Fla.2000) (holding nature of force used was deadly as matter of law).

PALMER, C.J., THOMPSON and MONACO, JJ., concur.


text:
    Anna Marie BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4019.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2007.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Anna Marie Bryant, appeals her conviction for two counts of introduction of contraband into a county detention facility. The- State properly concedes that the bringing of both Hydrocodone and Ox-ycodone into the correctional .facility in one container and at the same time is a single offense under the statute. § 951.22, Fla. Stat. (2005). Accordingly, we reverse and remand with instructions to vacate one of the convictions and for resentencing.

REVERSED and REMANDED.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.


text:
    Edward L. MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-493.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2007.
    Edward L. Morgan, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Morgan appeals from an order of restitution rendered by the trial court. We reverse. The record reflects that

The trial court erroneously denied Morgan’s request for appointed counsel. A criminal defendant is entitled to have counsel at sentencing proceedings. Carter v. State, 408 So.2d 766 (Fla. 5th DCA 1982). Sentencing proceedings include hearings in which the restitution amount is to be determined. See Long v. State, 876 So.2d 718 (Fla. 5th DCA 2004); Moore v. State, 868 So.2d 683 (Fla. 5th DCA 2004). The State is commended for its proper concession of error.

REVERSED and REMANDED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.


text:
    C.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D07-119.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 2007.
    Cassandra Gorton, Greenville, South Carolina, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to any right C.B. may have to seek appropriate post-conviction relief.

ALTENBERND, SILBERMAN, and LaROSE, JJ., concur.


author: KELLY, Judge.

text:
    Thomas Michael McGEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-783.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 2007.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Thomas McGee appeals from his judgment and sentence for possession of child pornography. We find merit only in his argument that the trial court erred in imposing certain costs upon him.

At sentencing, the trial court orally imposed court costs, investigative costs, and a public defender fee, stating: “The Court will impose $450 in court costs concurrent on everything as a lien. $200 for the public defender, the investigative costs of $360 to Clearwater on the possession of pornography charge.” The trial court’s written order imposed costs in a lump sum of $850. The only costs specifically identified as being included in the $850 amount were “$2.00 to the Criminal Justice Education Fund, a $40.00 Indigent Criminal Defense Fee as required by s. 27.52, F.S., and Investigative Costs in the amount of $360.00 pursuant to 938.27, F.S.” McGee challenged the remaining $448 in unidentified costs and the public defender’s fee by filing a motion under Florida Rule of Criminal Procedure 3.800(b)(2). The motion was deemed to be denied when the court did not rule on it within sixty days.

Because at sentencing the trial court did not provide a precise description of the costs it was imposing and the sentencing order does not identify the remaining $448, we cannot determine whether that amount consists of unidentified mandatory costs, discretionary costs that were not properly announced at sentencing, or a combination of both. Accordingly, we strike the unidentified costs. See Miller v. State, 912 So.2d 1282 (Fla. 2d DCA 2005) (holding that mandatory costs may be imposed without notice but that discretionary costs require notice and an opportunity to be heard and that in both cases the record must contain citations to the statutory authorities for imposing the costs). On remand, the trial court may reimpose the stricken costs if it identifies statutory authority for their assessment and, for any discretionary fines or costs, provides McGee with notice and an opportunity to contest their imposition. See Fisher v. State, 697 So.2d 1291 (Fla. 1st DCA 1997).

We also strike the $200 public defender’s fee because McGee was not given an opportunity to object to the fee at sentencing. Florida Rule of Criminal Procedure 3.720(d)(1) provides that the defendant must be advised at sentencing of his right to a hearing to contest the amount of the public defender’s lien. See Miller, 912 So.2d at 1283. McGee shall have thirty days from our mandate to file a written objection to the amount assessed for the public defender’s fee. See id. If he files an objection, the court shall hold a hearing. If McGee fails to timely object, the court may reimpose the public defender’s fee without a hearing. See id.

Accordingly, we affirm McGee’s judgment and sentence, strike the $448 in unidentified costs and the $200 public defender fee, and remand for further proceedings limited to those issues.

Affirmed in part; reversed in part.

DAVIS and WALLACE, JJ., concur.


text:
    Antonio RODRIGUEZ, Petitioner, v. Kenneth JENNE, as Sheriff of Broward County, Respondent.
    No. 4D07-3275.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2007.
    Frank Negron III, Davie, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Antonio Rodriguez petitions this court for a writ of habeas corpus alleging that he is being illegally held without bond. He is charged with five counts arising from the death of a pedestrian during a traffic accident, including DUI manslaughter.

At the first appearance hearing, the state made an oral request to hold petitioner without bond, but the state did not file a motion for pretrial detention. After considering the circumstances in this case, petitioner’s driving record, and a failure to appear in a separate case, the court denied bond on count I, over defense counsel’s objection, and set bond on the remaining counts.

Because the state did not file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132, the trial court did not have authority to deny petitioner bond and instead was required to consider conditions of release pursuant to Florida Rule of Criminal Procedure 3.131(b)(1). Resendes v. Bradshaw, 935 So.2d 19 (Fla. 4th DCA 2006); see also Duffy v. Crowder, 960 So.2d 909 (Fla. 4th DCA 2007).

Accordingly, we grant the petition for writ of habeas corpus and remand for a hearing to determine conditions of pretrial release or for a pretrial detention hearing if the state files a proper motion. The trial court shall hold the hearing within three business days following the issuance of this opinion.

POLEN, GROSS and MAY, JJ., concur.


text:
    Stanley Dale STOVALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1159.
    District Court of Appeal of Florida, Fifth District.
    Sept. 4, 2007.
    Stanley D. Stovall, Mayo, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Macaluso v. State, 912 So.2d 694 (Fla. 2d DCA 2005).

THOMPSON, ORFINGER and TORPY, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Maritza RIVERO, Appellant, v. Jorge H. RIVERO, Appellee.
    No. 3D06-481.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2007.

      Rosenthal Rosenthal Rasco, LLC, Aven-tura, and Eduardo I. Rasco and Jessica B. Lassman, for appellant.
    Polo, Yablen & Associates, and Barry A. Yablen, for appellee.
    Before GERSTEN, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   On Motion for Rehearing

ROTHENBERG, Judge.

We grant the appellant’s motion for rehearing and substitute the following opinion in its stead:

In this appeal, the defendant, Maritza Rivero (“Former Wife”), challenges the general magistrate’s interpretation of paragraph eight of the parties’ Marital Settlement Agreement (“MSA”) dated October 30, 2002, which was ratified by the trial court. Because we conclude that the magistrate and the trial judge correctly interpreted and applied both paragraph eight of the MSA and the law, we affirm.

The parties were married for approximately thirteen years. During their marriage, the Former Husband worked for Publix Super Markets, Inc. (“Publix”) and acquired a pension under an Employee Stock Ownership Plan (“ESOP”) through his employment with Publix. The contributions made by Publix to its employees’ ESOP accounts were based on each employee’s yearly wages. A substantial portion of the money contributed to the ESOP was invested in shares of Publix stock, while the remainder was placed in other investments held by the ESOP. Employees participating in the plan could elect to receive yearly dividends on the shares of stock held in their ESOP accounts.

Paragraph eight of the MSA specifies that the parties “have amicably divided all marital property” and provides that “[t]he Husband and Wife shall be entitled to ⅛ of the present value of the Husband’s profit sharing plan [ (ESOP) ]. The total approximate value is $300,000.00. The Wife shall not be entitled to receive her ½ interest until the Husband retires or otherwise leaves his employment.” (Emphasis added).

When the parties signed the MSA, the actual value of the Former Husband’s ESOP was $287,146.95. This amount represents 7,149.7543 shares of Publix stock, valued at $40.00 per share, and $1,156.83 in other included investments. By December 1, 2004, the ESOP had increased by 746 shares of Publix stock to a total of 7,895.7543 shares, valued at $72.75 per share. From 2003 to 2005, the Former Husband received and retained one hundred percent of the yearly dividends of $0.40, $0.45, and $0.70 per share of Publix stock held, respectively.

On March 9, 2005, the Former Wife filed a Petition for Modification of Final Judgment in which she sought an increase in monthly alimony and child support payments based on a purported change in circumstances, including an increase in the Former Husband’s salary and the Former Wife’s expenses. This petition is still pending.

On October 3, 2005, the Former Husband filed a Verified Motion for Enforcement of the MSA and for Clarification of the Former Wife’s entitlement. The motion sought clarification of paragraph eight of the MSA and was filed in response to the Former Wife’s allegations that the Former Husband improperly retained the Former Wife’s share of annual dividends from the pension proceeds. On November 18, 2005, the Former Wife filed a Motion for Payment of Dividends and for an Order to Freeze ESOP Dividend Check. The Former Husband also filed a Verified Motion to Compel Publix to Immediately Release ESOP Dividends to Former Husband. The above motions were referred to a magistrate, and on January 9, 2006, the magistrate recommended that the trial court deny the Former Wife’s motion and grant the Former Husband’s motions.

The trial court ratified and affirmed the findings of the magistrate, finding that paragraph eight of the MSA is clear and unambiguous; the Former Wife’s interest in the Former Husband’s ESOP should be determined in dollars, not number of shares; the Former Wife is entitled to receive one-half of the total value of the ESOP at the time the parties executed their agreement, to be paid upon the Former Husband’s retirement or permanent leave from Publix; and the Former Wife is not entitled to receive any dividends or appreciation in value of the stock in the Former Husband’s ESOP. We agree.

The Former Husband is the exclusive owner of his Publix ESOP. Upon dissolution of the marriage, the ESOP ceased to be a marital asset. Willman v. Willman, 944 So.2d 1151, 1151 (Fla. 1st DCA 2006) (holding that a husband’s pension plan ceases to be a marital asset for the purposes of equitable distribution on the date of the filing of a petition for dissolution of marriage or upon the date the parties entered into a valid separation agreement). Because the Former Wife was awarded a monetary interest in the Former Husband’s pension plan rather than an ownership interest in the plan, she is not entitled to any appreciation in its value. See Burton v. Burton, 851 So.2d 861, 862 (Fla. 5th DCA 2003)(affirming final judgment of dissolution of marriage that awards former wife a specified monetary amount from the former husband’s pension but does not transfer any ownership interest in the pension itself); Doyle v. Doyle, 789 So.2d 499, 503 (Fla. 5th DCA 2001)(holding that the former wife was not entitled to the appreciation in value of the former husband’s pensions because the former wife had not actually been awarded the pension plans themselves, but rather had been “awarded a specific monetary interest in the husband’s pension plans”).

A former spouse is not entitled to receive benefits that accrue after the dissolution of the parties’ marriage. Section 61.075, Florida Statutes (2003), states in pertinent part:

(1) In a proceeding for dissolution of marriage ... the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including .... (f) The desirability of retaining any asset ... intact and free from any claim or interference by the other party.
(5) As used in this section: (a) “Marital assets and liabilities” include: 1. Assets acquired ... during the marriage, individually by either spouse or jointly by them; 2. The enhancement in value and appreciation of nonmarital assets resulting from either party during the marriage....

§ 61.075(1)(f), (5)(a), Fla. Stat. (2003); see also Boyett v. Boyett, 683 So.2d 1140, 1141 (Fla.1996)(holding that it is not permissible for the former wife to benefit from the former husband’s labor after the divorce); Jahnke v. Jahnke, 804 So.2d 513, 516 (Fla. 3d DCA 2001)(holding that “assets should not, ordinarily, be valued as of a post-dissolution date because subsequent change in a property’s value due to non-marital labor or efforts cannot be distributed”); Brown v. Minning, 757 So.2d 628, 630 (Fla. 5th DCA 2000) (holding that “current law provides that a spouse should not receive benefits accrued after the dissolution of the parties’ marriage”). We, therefore, agree with the trial court that the MSA is not ambiguous and that based on the clear meaning of the language of the MSA and Florida law, the Former Wife is only entitled to' one-half of the value of the Former Husband’s ESOP at the time the MSA was signed, to be paid when the Former Husband retires or otherwise leaves his employment.

We also reject the Former Wife’s argument that because the MSA divides all other marital assets and liabilities equally between the parties, it follows that the ESOP should be divided equally as of the time of the signing of the MSA, and that the appreciation from each party’s respective half should be apportioned to the respective party. Contrary to the Former Wife’s claim, the MSA does not reflect that all of the marital assets and liabilities were divided equally. In particular, the MSA specifies that the Former Wife receive one hundred percent interest in the marital residence, valued at approximately $130,000.00, the furniture and appliances in the marital home, and the lease rights to a 2000 Chevrolet Impala, for which the Former Husband paid $385.00 monthly for a year following dissolution of the marriage. In addition, the Former Husband is required to pay the Former Wife $700.00 in alimony and $1,000.00 in child support per month. The Former Husband assumed $80,000.00 of marital debt, with no corresponding obligation to the Former Wife. The Former Husband retained sole interest in his 401-K retirement plan, worth approximately $35,000.00 at the time of the signing of the MSA. Thus, the Former Wife’s argument, that she should receive the dividends and appreciation of her claimed shares of stock from the ESOP because all other marital assets and liabilities were allegedly divided equally, is without merit and contrary to the plain, unambiguous language of the MSA.

We find equally unavailing the Former Wife’s claim that the magistrate committed reversible error in entering its report without considering the parties’ intent regarding paragraph eight of the MSA. As we agree with the trial court that paragraph eight is not ambiguous, parol evidence as to the parties’ intent was inadmissible.

The Former Wife’s final claim is that because she does not speak, read, or write English, she misunderstood the provisions contained in the MSA. The Former Wife, however, is presumed to know what she is signing and is charged with the duty of procuring a reliable person to explain the document to her prior to her signing it. As the Fifth District Court of Appeal stated in Merrill, Lynch, Pierce, Fenner Smith, Inc. v. Benton, 467 So.2d 311 (Fla. 5th DCA 1985),

The rule that one who signs a contract is presumed to know its contents has been applied even to contracts of illiterate persons on the ground that if such persons are unable to read, they are negligent if they fail to have the contract read to them. If a person cannot read the instrument, it is as much his duty to procure some reliable person to read and explain it to him, before he signs it, as it would be to read it before he signed it if he were able to do so....

Benton, 467 So.2d at 313 (quoting Sutton v. Crane, 101 So.2d 823, 825 (Fla. 2d DCA 1958)(quoting 12 Am.Jur. Contracts § 137)); see also Keller v. Reed, 603 So.2d 717, 720 (Fla. 2d DCA 1992) (“[PJarties to a written instrument have a duty to learn and understand the contents of that instrument before signing it.”); Onderko v. Advanced Auto Ins., Inc., 477 So.2d 1026, 1028 (Fla. 2d DCA 1985) (“A party has a duty to learn and know the contents of an agreement before signing it.”).

Affirmed.


author: STEVENSON, J.

text:
    PROSPEC, L.L.C., Appellant, v. Lori MAZZEI, Andrew Craissati and Mirsky Realty Group, L.L.C., Appellees.
    No. 4D07-364.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Alan B. Rose and Brad S. McPherson of Page, Mrachek, Fitzgerald & Rose, P.A., West Palm Beach, for appellant.

      Joseph C. Schulz of Vastóla, Schulz & Harvey, North Palm Beach, for appellee Lori Mazzei.
   STEVENSON, J.

Lori Mazzei entered into a contract with ProSpec, L.L.C. for ProSpec to inspect a house. After Mazzei filed a complaint alleging that ProSpec breached the contract, ProSpec sought to compel arbitration pursuant to the contract’s arbitration clause. ProSpec now appeals the trial court’s order granting its motion to compel arbitration on the condition that it pay the filing fee required by the American Arbitration Association. We reverse the trial court’s “conditional” granting of the motion to compel arbitration.

In this appeal, the sole issue is which party is required to pay the arbitration’s initial filing fee. Mazzei, the plaintiff below, does not assert that her claim against ProSpec presents no arbitrable issue. Rather, Mazzei contends that she was not required to file an arbitration action because the arbitration clause is ambiguous and “does not state that disputes over the contract must be filed as an arbitration action at its outset.” The arbitration clause contained in the pre-inspection agreement states:

Any controversy of claim between the parties arising out of or relating to the interpretation of this Agreement, the services rendered hereunder or any other matter pertaining to this Agreement will be submitted in accordance with the applicable rules of the American Arbitration Association.

This court has previously stated that “all doubts about the scope of an arbitration agreement, as well as any questions about waivers thereof, are in favor of arbitration, rather than against it.” Breckenridge v. Farber, 640 So.2d 208, 210 (Fla. 4th DCA 1994). Mazzei’s contention that she was not required to seek resolution of the contractual dispute with ProSpec as an arbitration action “at its outset” is without merit.

We also reject Mazzei’s argument that ProSpec should be required to pay the initial arbitration fee since ProSpec was the party that asked the court to send the dispute to arbitration. R-49 of the American Arbitration Association’s Commercial Arbitration Rules and’ Mediation Procedures states that “[t]he filing fee shall be advanced by the party or parties making a claim or counterclaim, subject to final apportionment by the arbitrator in the award.” In Kessel v. Dugand, 508 So.2d 45 (Fla. 4th DCA 1987), the parties entered into an agreement that required them to submit all disputes to arbitration. When a dispute arose, the appellees disregarded the arbitration clause and filed a complaint in the trial court. See id. Thereafter, the trial court held that the parties would each pay half of the initial filing fee. See id. at 46. On appeal, this court held that the appellees, the plaintiffs in the trial court and the party seeking formal resolution of the dispute, would be required to advance the initial arbitration filing costs:

[T]he initial payment of the arbitration expenses required to commence the proceeding should be paid by the party initiating it, i.e., the party pursuing the claim. This seems to be a logical and reasonable resolution of the problem and one consistent with precedent. The American Arbitration Association Rules provide that the party initiating the proceeding must advance the necessary fee.

Id. at 46 (emphasis added).

In reaching its holding in Kessel, this court approvingly cited the opinion in A.P. Brown Co. v. Superior Court ex rel. Pima County, 16 Ariz.App. 88, 490 P.2d 867 (1971), and noted that “the Arizona court held the initiator should advance the expense money, and it is commonly the plaintiff or movant in all courts who advances the initial expense to start the suit. The arbitrator’s award made at the close of the proceeding designates who will end up footing the bill.” 508 So.2d at 46. In A.P. Brown Co., the parties entered into a contract pertaining to the purchase of real estate, which provided that all disputes had to be submitted to arbitration. See 490 P.2d at 869. After the trial court determined that the dispute was subject to arbitration, the plaintiffs paid a small portion of the filing fee, but the American Arbitration Association sent the plaintiffs a bill for an additional $1,100. Because the plaintiffs opposed paying the bill, arguing that “it was the defendants who were forcing arbitration,” the trial judge held a hearing and then ordered the parties to each pay half of the bill. Id. at 868-69. On appeal, the plaintiffs contended that they were not the party initiating arbitration “since arbitration was ordered by the trial court.” Id. at 869. When addressing this contention, the Arizona Court of Appeals said that “[t]his argument is clearly specious since the court merely found that the subject matter of the lawsuit filed by the [plaintiffs] should be submitted to arbitration as per their agreement and stayed the pending proceeding.” Id. at 869-70. In A.P. Brown Co., the plaintiff was required to advance the arbitration filing fees even though the defendant asked that the dispute be moved from court into the arbitration arena.

As in Kessel and A.P. Brown Co., Mazzei is the party pursuing the claim, and pursuant to the contract, is required to initiate the arbitration proceedings and advance the arbitration filing fees. Accord N. Am. Van Lines v. Collyer, 616 So.2d 177, 178 (Fla. 5th DCA 1993) (requiring plaintiffs to pay the initial arbitration filing fees even though the defendant asked the circuit court to stay the legal proceedings and insisted on exercising its contractual arbitration rights). Accordingly, we hold that the trial court erred by conditionally granting ProSpec’s motion to compel arbitration. We reverse and remand with directions that the trial court strike the conditional language from the order, which requires ProSpec to pay the filing fee to initiate the arbitration.

Reversed and Remanded.

POLEN and TAYLOR, JJ., concur.