author: PARIENTE, J.

text:
    William F. HAYES, Jr., et al., Petitioners, v. GUARDIANSHIP OF Mae E. THOMPSON, etc., Respondent.
    No. SC05-675.
    Supreme Court of Florida.
    Nov. 9, 2006.
    Rehearing Denied March 14, 2007.

      Eduardo I. Rasco and Jessica B. Lass-man of Rosenthal, Rosenthal, Rasco, LLC, Aventura, FL, for Petitioners.
    Stephen B. Fuller, Coral Gables, FL, for Respondent.
   PARIENTE, J.

We have for review Hayes v. Guardianship of Thompson, 934 So.2d 493 (Fla. 3d DCA 2005), in which the Third District Court of Appeal certified conflict with the Fourth District Court of Appeal’s decision in Bachinger v. Sunbank/South Florida, N.A., 675 So.2d 186 (Fla. 4th DCA 1996).

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The certified conflict involves the issue of standing to participate in guardianship proceedings. For the reasons that follow, we hold that a person, including an heir of a ward, has standing to participate in a guardianship proceeding if the applicable provisions of either the Florida Guardianship Law or the Florida Probate Rules entitle the person to notice of the proceeding or authorize the person to file an objection in the proceeding. Applying this holding to guardianship proceedings concerning attorney’s fees under section 744.108, Florida Statutes (2006), we conclude that, in addition to the attorney making the fee request, only the guardian, the ward, and those “interested persons” who have requested notice under Florida Probate Rule 5.060 have standing to participate in the proceedings.

FACTS AND PROCEDURAL HISTORY

This case concerns the guardianship of Mae E. Thompson, now deceased. Thompson lived with her nephew, William F. Hayes, III, who, along with Thompson’s sister, Vivian Hayes, and brother-in-law, William F. Hayes, Jr., are the petitioners in this case. In February 2003, the Department of Children and Families (DCF) filed a petition under the Adult Protective Services Act, sections 415.101-415.113, Florida Statutes (2002), to have Thompson, who was then eighty-one years of age, removed from her nephew’s home because of poor living conditions. The circuit court granted the petition and ordered that Thompson receive protective services.

The circuit court also adjudicated Thompson incapacitated, and appointed a guardian and court monitor.

In a subsequent comprehensive order, the circuit court agreed with DCF’s initial assessment finding that Thompson was a victim of multiple abuses at the hands of her nephew and sister, who had been responsible for assisting Thompson with her medical and financial needs. The circuit court also specifically found that the living conditions at the nephew’s home were deplorable and that Thompson was placed at risk of harm and danger by living there. The circuit court determined that Thompson had been “exploited by her sister, Vivian, and nephew Billy,” that she could “be easily influenced,” and that she had “poor insight and judgment regarding her finances.” The court also concluded that Vivian was responsible for “gross misappropriations” from Thompson’s financial account.

The guardianship proceedings involved significant financial issues, including the extent of the petitioners’ mismanagement of Thompson’s money and whether some of the funds frozen by the circuit court belonged to any of the petitioners individually. There were also several hearings involving the petitioners’ violation of court orders.

During the guardianship, Thompson’s counsel filed several petitions for attorney’s fees pursuant to section 744.108. The petition for attorney’s fees at issue in this case was sent to Thompson’s guardian and the court-appointed monitor. Neither the guardian nor the monitor objected to the fee request. However, at the hearing on the petition, counsel for the petitioners objected to the petition for several reasons: that an accounting needed to be conducted before further fees could be disbursed; that expert testimony on the amount of fees was required; and that a portion of the fees claimed was for work for which counsel had already received compensation. In response, Thompson’s attorney asserted that the petitioners lacked standing to challenge the petition. The trial court agreed, but allowed the petitioners to explain their objections as a “friend of the court.”

After hearing the petitioners’ objections and finding that Thompson was solvent, the circuit court determined that this case involved exceptional circumstances and awarded attorney’s fees in the amount of $8,071 for legal services rendered from January 8, 2004, through March 22, 2004. The circuit court determined that the attorney’s fees were both reasonable and necessary.

The petitioners appealed the circuit court’s order awarding Thompson’s counsel $3,071 in attorney’s fees. The Third District affirmed, concluding that petitioners lacked standing to challenge the award. The Third District cited its decision in McGinnis v. Kanevsky, 564 So.2d 1141 (Fla. 3d DCA 1990), and certified conflict with the Fourth District’s decision in B achinger. The Third District did not decide whether the fee award was proper.

ANALYSIS

Chapter 744, Florida Statutes, the Florida Guardianship Law, governs guardianship proceedings in this state. Section 744.108, which concerns guardian’s and attorney’s fees and expenses, states that “[a] guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.” § 744.108(1), Fla. Stat. The statute further provides that a “petition for fees or expenses may not be approved without prior notice to the guardian and to the ward, unless the ward is a minor or is totally incapacitated.” § 744.108(6), Fla. Stat.

The issue in this case requires us to determine whether standing to participate in guardianship proceedings under this statute is limited to the guardian and the ward — and their counsel in attorney’s fees proceedings — or whether it also extends to other parties. We first review case law addressing standing in the context of different types of guardianship proceedings. We then set out the .analysis that courts should undertake in making a determination on standing and explain why the summary approach adopted by the Third District in McGinnis is incomplete.

I. Case Law Addressing Standing in Guardianship Proceedings

In McGinnis, the issue was whether relatives of a deceased ward had standing as heirs of the ward’s estate to challenge awards of guardian’s fees that had previously been approved by the court under section 744.108 on the ground that the fees were excessive. See 564 So.2d at 1142. The Third District held that “guardianship fees, properly authorized by the probate court, may not be set aside after the ward’s death merely because his heirs consider that the awards were too high.” Id.

McGinnis construed a version of section 744.108 that provided:

A guardian of the person or of the property shall receive a reasonable fee for his services to be fixed by the court after such notice as the court shall require.

Id. at 1143 n. 7 (quoting § 744.108, Fla. Stat. (1981)). Based on this language, the Third District explained why the heirs of the ward’s estate were not entitled to notice:

The lack of any requirement for further notice reflects the idea that, in the case of a guardianship, the ward and his estate are the only interested parties. Insofar as these interests may be contrary to those of the guardian seeking fees, they are represented and safeguarded by the probate court itself.

Id. The Third District noted that even under the “new and far broader guardianship law” enacted in 1989, heirs of a ward’s estate are not within the class of persons “cognizably interested in the guardianship estate” because the statute provides notice to only the ward, guardian, and attorney.

Id.

The Third District also rejected the argument that the heirs were entitled to revisit the issue of guardianship fees under section 744.424(2), Florida Statutes (1987), which provided for objections to attorney’s fees and guardianship expenses sought in annual and final returns unless previously, allowed. McGinnis, 564 So.2d at 1143 & n. 8. The Court reached the same conclusion about Florida Rule of Probate and Guardianship Procedure 5.700(a) (1977), id. at 1143-44, which provided for objections to annual financial returns by “a person interested as creditor, or otherwise.” Id. at 1144 (quoting rule 5.700(a) (1977)). Because the heirs of the ward’s estate were not entitled to notice under section 744.108 and were not authorized to file objections under section 744.424 or rule 5.700(a), the Third District ruled in McGinnis that the heirs lacked standing to challenge the previously awarded guardian’s fees. 564 So.2d at 1144-45.

Finally, the Third District observed that in guardianship proceedings, “the court is concerned only with the welfare of the ward himself in the administration of what are, after all, only his funds.” Id. at 1144. Heirs of a ward’s estate “are only contingent or potential beneficiaries who cannot complain that any expenditures on behalf of the ward have diminished what they may eventually receive and thus are not interested parties in the administration of the guardianship.” Id. The Third District expressed concern that allowing heirs standing to challenge an award of guardian’s fees was akin to allowing heirs or devisees standing to challenge “the supposedly excessive spending habits of a competent person during his lifetime” or to seek a “pre- or post-mortem determination of the appropriate expenditures of the assets from the guardianship,” which is “not the law.” Id. at 1144 n. 9. Bachinger⅛ the conflict case, also involved whether heirs of a deceased ward had standing to participate in a guardianship proceeding. However, unlike the proceedings in McGinnis and Hayes, which involved guardian’s and attorney’s fees, respectively, Bachinger involved a proceeding on a petition for final discharge. See Bachinger, 675 So.2d at 186. The Third District in Hayes did not acknowledge that Bachinger involved a different proceeding when it certified conflict, but this distinction is significant.

When a guardian petitions for final discharge, the guardian must file a final report with the court, and the court shall approve the report

[i]f no objections are filed and if it appears that the guardian has made full and complete distribution to the person entitled and has otherwise faithfully discharged his or her duties. If objections are filed, the court shall conduct a hearing in the same manner as provided for a hearing on objections to annual guardianship reports.

§ 744.527(1), Fla. Stat. (2006). In determining whether the heirs had standing to object to the petition for final discharge, the Fourth District looked to Florida Probate Rule 5.700(a), which provides that the “ward, or any other interested person, may file an objection to any part of a guardianship report within the time provided by law.” See Bachinger, 675 So.2d at 187.

Relying on the language of rule 5.700(a), which allows an “interested person” to file an objection to any part of a guardianship report, the Fourth District determined that the heirs had standing to object to the petition for final discharge because they “alleged that, in addition to being heirs, they were relatives and were taking care of [the] decedent before she was declared incompetent.” Bachinger, 675 So.2d at 188. The Fourth District stated that “[i]f they do not have a sufficient interest to question how [the ward’s] funds were spent, there is probably no one who does.” Id. The Fourth District considered the concerns expressed by the Third District in McGinnis about allowing heirs to object to funds being spent on the ward, but was “not persuaded that it follows that they should have no standing.” Id. at 187. The Fourth District explained that it is not sufficient to rely on the court and the guardian to scrutinize expenditures made on behalf of the ward because, due to the ex parte nature of these types of proceedings, “it is highly unrealistic to assume” that they “would involve any high level of scrutiny.” Id. Quoting Judge Sharp’s observation in Sun Bank & Trust Co. v. Jones, 645 So.2d 1008, 1017 (Fla. 5th DCA 1994), the Fourth District added that “[c]ourts must scrupulously oversee the handling of the affairs of incompetent persons under their jurisdiction and err on the side of over-supervising rather than indifference.” Bachinger, 675 So.2d at 188.

In Jones, on which the Fourth District relied, the Fifth District also considered both the applicable statutory law and the guardianship rules in deciding whether personal representatives of a deceased ward’s estate had standing to object to a petition for final discharge and a petition for guardian’s and attorney’s fees. In that case, the guardian and the guardian’s attorney sought fees for services performed on the ward’s behalf that included substantial sums related to a “home- plan.” Jones, 645 So.2d at 1013. The ward’s daughter-in-law, in her capacity as personal representative of the ward’s estate, objected to the fees and asserted that they should not be awarded for services rendered in carrying out the “home plan” because the “home plan” was neither feasible nor in the best interest of the ward. See id. Sun Bank, which was the personal representative under a superseding will, also objected to the fees and maintained that the “home plan” was excessive and unauthorized, created a conflict of interest between the guardian and the ward, and was not in the ward’s best interest. See id. at 1014. The trial court refused to consider the merits of these objections, citing McGinnis as authority. See id.

On appeal, the Fifth District reversed and ruled that review of the personal representatives’ objections to the “home plan” should not have been foreclosed and that Sun Bank was a proper party to raise these objections. See id. at 1017. The Fifth District observed that notice was not provided to the personal representatives as required by the applicable statute and rule of procedure. See id. Specifically, the Fifth District cited section 744.447(2), which requires that notice of a petition to perform any act that constitutes a conflict of interest between the guardian and the ward “be given to the ward, next of kin, if any, and to those interested persons who have filed requests for notices ... as provided in the Florida Probate Rules.” See Jones, 645 So.2d at 1017. The court also cited Florida Probate Rule 5.630(b), which requires that notice of a petition to perform an act requiring court approval be provided to the ward, next of kin, and those persons who have filed requests for notices. See Jones, 645 So.2d at 1017.

Because these notice requirements had not been followed and because the trial court had conducted most of the proceedings ex parte, the Fifth District concluded that a full hearing on the objections should be held. See 645 So.2d at 1017. The Fifth District distinguished McGinnis because “the thrust of the objections [in Jones ] is not excessiveness [of the fees sought] but a direct conflict of interest between guardian and ward.” Id. The court concluded that “[c]learly, only a person other than the guardian can protect the ward’s interests in such a case.” Id.

II. Determining Standing in Guardianship Proceedings

Standing is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly. See generally Brown v. Firestone, 382 So.2d 654, 662 (Fla.1980) (“[T]his Court has long been committed to the rule that a party does not possess standing to sue unless he or she can demonstrate a direct and articulable stake in the outcome of a controversy.”); Weiss v. Johansen, 898 So.2d 1009, 1011 (Fla. 4th DCA 2005) (“Standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the outcome of the litigation.”). Thus, standing to bring or participate in a particular legal proceeding often depends on the nature of the interest asserted.

In guardianship proceedings, the overwhelming public policy is the protection of the ward. See § 744.1012, Fla. Stat. (2006) (declaring that the purpose of the Florida Guardianship Law is “to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf’). Thus, unlike most other types of litigation, guardianship proceedings are not adversarial and are governed by a comprehensive statutory code and set of procedural rules dictating who should receive notice of a particular proceeding.

In deciding who has standing to participate in a guardianship proceeding, the Third, Fourth, and Fifth Districts all focused on whether the person asserting standing is entitled to notice of the proceeding or is expressly authorized to file an objection in the proceeding. Significantly, each of these courts reviewed both the statutory law and the Florida Probate Rules. These courts also evaluated the nature of the interest of the person asserting standing.

We agree that when deciding whether a person has standing to participate in a specific guardianship proceeding, the court should begin by considering both the provisions of the Florida Guardianship Law and any pertinent Florida guardianship rules. The guardianship statutes and rules complement one another. The guardianship statutes set out the substantive law in this area and the Florida Probate Rules set out “the procedure in all probate and guardianship proceedings.” Fla. Prob. R. 5.010. If a party asserting standing is either entitled to notice or authorized to file an objection in the proceeding under either the statutory provisions or the rules, that party should have standing to participate in the proceeding. Otherwise, the right to receive notice or file an objection would be meaningless. Cf. Velez v. Miami-Dade County Police Dep’t, 934 So.2d 1162, 1165 (Fla.2006) (“This combination of a requirement of notification of the right to the adversarial preliminary hearing and the right to request the hearing indicates that the Legislature intended that the ‘person entitled to notice’ have an opportunity to participate in that hearing.”).

Where either the Florida Guardianship Law or the Florida Probate Rules expressly require that a person receive notice, the purpose of the provision is to inform the person of the proceeding and give the person an opportunity to participate in the proceeding if he or she chooses. For example, a petition to determine incapacity under section 744.331, Florida Statutes (2006), requires notice of the filing of the petition to be served on the incapacitated person, the attorney for the incapacitated person, and all next of kin identified in the petition. Thus, we hold that if the person is entitled to notice or is authorized to file an objection under the Florida Guardianship Law or the Florida Probate Rules, that person has standing to participate in the guardianship proceeding.

III. Whether Heirs to a Ward’s Estate Have Standing in a Proceeding Under Section 744.108, Florida Statutes (2006)

We must next determine whether, under the analysis set out above, heirs of a ward’s estate have standing in a proceeding under section 744.108 to challenge a petition for guardian’s or attorney’s fees. Section 744.108(6) states that a “petition for fees or expenses may not be approved without prior notice to the guardian and to the ward, unless the ward is a minor or is totally incapacitated.”

Unlike rule 5.700(a), which addresses objections to guardianship reports and allows “interested persons” to file an objection to any part of a guardianship report, there is no specific guardianship rule that provides for notice of, or objections to, petitions for guardian’s or attorney’s fees beyond what is provided in section 744.108. However, rule 5.060, which applies to all guardianship and probate proceedings in this state, including proceedings under section 744.108, provides:

(a) Request. Any interested person who desires notice of proceedings in the estate of a decedent or ward may file a separate written request for notice of further proceedings, designating therein such person’s residence and post office address. When such person’s residence or post office address changes, a new designation of such change shall be filed in the proceedings. A person filing such request, or address change, shall also deliver a copy thereof to the clerk, personal representative or guardian, noting on the original the fact of mailing.
(b) Notice and Copies. A party filing a request shall be served thereafter by the moving party with notice of further proceedings and with copies of subsequent pleadings and papers as long as the party is an interested person.

(Emphasis supplied.)

Thus, under rule 5.060, an “interested person” who files a request is entitled to notice of further proceedings and copies of all subsequent pleadings in the case. Although section 744.108 does not specifically require that an “interested person” receive notice, a person is nonetheless entitled to notice pursuant to rule 5.060 as long as the requirements of the rule have been satisfied and the trial court agrees that the person does in fact qualify as an “interested person.”

The question is what are the criteria for determining who qualifies as an “interested person.” Both the Florida Guardianship Law and the Florida Probate Rules specify that the term “interested person” is to be accorded the definition contained in chapters 731-735, Florida Statutes, known as the Florida Probate Code. The

Florida Probate Code defines the term “interested person” as

any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of the decedent’s estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor’s estate. The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.

§ 731.201(21), Fla. Stat. (2006).

Thus, unlike a ward, a guardian, or next of kin, who are specific persons occupying finite, statutorily defined roles, the definition of “interested person” requires the trial court to evaluate the nature of both the proceeding and the interest asserted. In defining an “interested person” as any person “who may reasonably be expected to be affected by the outcome of the proceeding,” section 731.201(21) incorporates the general standing principles referred to above. And because the question of who is an “interested person” may vary as the circumstances of the guardianship change, we cannot provide strict guidelines for the lower courts to follow in deciding whether a party who receives notice of a petition for attorney’s fees pursuant to a request made under rule 5.060 is a “person who may reasonably be expected to be affected by the outcome of the ... proceeding.” § 731.201(21), Fla. Stat.

Although we cannot provide specific criteria, we reject the bright-line rule adopted by the Third District in McGinnis that precludes an heir from participating in a proceeding for guardian’s or attorney’s fees. Implicit in the Third District’s reasoning is that heirs of a ward should never be afforded standing to participate in proceedings for guardian’s or attorney’s fees because there are sufficient built-in procedural safeguards to protect the interests of the ward:

[J]ust as it is obviously for the competent person, to spend or misspend his assets as he pleases, so it is up to the guardianship estate, regulated by the guardian and the court, to do the same without the interference or concern with the totally non-altruistic wishes of the ward’s relatives or legatees.

564 So.2d at 1144 n. 9 (emphasis supplied).

We disagree. As the Fourth and Fifth Districts recognized in Bachinger and Jones, “[cjourts must scrupulously oversee the handling of the affairs of incompetent persons under their jurisdiction and err on the side of over-supervising rather than indifference.” Bachinger, 675 So.2d at 188 (quoting Jones, 645 So.2d at 1017). Moreover, although courts must approve petitions for guardian’s and attorney’s fees, “it is highly unrealistic to assume that such an ex parte procedure would involve any high level of scrutiny.” Bachinger, 675 So.2d at 187. Thus, depending on the circumstances of the case and the specific issues involved, heirs of a ward may be considered “interested persons” for the purpose of participating in a guardianship proceeding, including a proceeding for guardian’s or attorney’s fees. See, e.g., Bachinger, 675 So.2d at 188 (beneficiaries under the ward’s will, who cared for her before she became incompetent, were interested persons for the purpose of filing objections to guardian’s petition for final discharge).

IV. This Case

In this case, the Third District determined that the petitioners lacked standing to object to the award of attorney’s fees under section 744.108 based on McGinnis. Although we disagree with the bright-line rule adopted by the Third District in McGinnis and relied on in this case, we agree with the affirmance of the trial court’s order.

Our review of the record reveals that the petitioners never made a request for notice under rule 5.060 as interested persons. Further, their involvement in guardianship proceedings that were necessitated by their own mistreatment of the ward and misappropriation of her funds does not entitle them to participate in proceedings involving requests for attorney’s fees by the ward’s attorney. The fact that they may have received a courtesy copy of some of the prior petitions does not in itself confer standing on them to participate in the subsequent proceeding. Because the petitioners were not entitled to receive notice of the attorney’s fees proceeding under either section 744.108 or rule 5.060, they did not have standing to participate in that proceeding.

We also note that although the petitioners assert in their brief that future attorney’s fees may eventually exceed $150,000, which is apparently more than the amount of the ward’s estate, this case defies generalizations about how a ward’s relatives are the persons most interested in ensuring that a ward’s funds are properly spent. Given the findings of the trial court that attribute the need for the guardianship directly to the petitioners, it would appear inescapable that the fees they now claim are excessive came as a result of their own misconduct. Petitioners’ concern about potentially excessive fees sounds a bit like the apocryphal story of the man who kills both his parents and begs the court for mercy because he is an orphan. Moreover, the attorney’s fees proceeding is not the appropriate forum in which to address the petitioners’ assertion that there are outstanding issues regarding the trial court’s initial findings on how much of the commingled funds belong to the ward.

CONCLUSION

Although the order that is the subject of this controversy involves only $3000, the principle is important. There must be a balance between ensuring that petitions for attorney’s fees are carefully scrutinized and ensuring that these petitions are not subject to endless challenges by those whose only interest is to maximize their potential inheritance.

Accordingly, we conclude that in determining whether a person has standing in a guardianship proceeding, courts must consider the applicable provisions of both the Florida Guardianship Law and the Florida Probate Rules. Specifically, courts should look to whether either the statutory law or the rules entitle the person to notice of the proceeding or authorize the person to file an objection in the proceeding. If the person is entitled to notice or is authorized to file an objection, that person has standing to participate in the guardianship proceeding.

We hold that in guardianship proceedings concerning attorney’s fees under section 744.108, the only persons entitled to standing are the attorney making the fee request, the guardian, the ward, and those “interested persons” who have filed written requests for notice under Florida Probate Rule 5.060. We disapprove the reasoning in Hayes based on its complete reliance on McGinnis and disapprove McGinnis to the extent that it suggests that heirs of a ward can never have standing to participate in proceedings for fees under section 744.108. However, we approve the result in Hayes, which denies the petitioners standing to participate in the attorney’s fees proceeding at issue in this case. Although Bachinger involved a petition for final discharge, we approve the Fourth District’s decision, which recognizes that heirs of a ward may have standing to participate in guardianship proceedings as “interested persons.”

It is so ordered.

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

      . Specifically, the circuit court ordered that DCF place Thompson in an appropriate facility, apply for eligible financial benefits on behalf of Thompson, secure available medical and legal services, assist in obtaining in-home services as necessary, provide casework for the purpose of planning and providing needed services, provide for medical and psychiatric examinations if needed, and file a petition to determine capacity and to appoint a guardian.

      . Section 744.102(12), Florida Statutes (2006), defines an “incapacitated person” as “a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of such person.”

      . The circuit court was authorized to appoint a monitor under section 744.107, Florida Statutes (2006). This section provides that “[t]he monitor may investigate, seek information, examine documents, or interview the ward, and shall report to the court his or her findings.” § 744.107(2), Fla. Stat. (2006).

      . Apparently, the issue of an accounting was not finally resolved at the time of the subject order regarding attorney's fees.

      . Counsel for Thompson's guardian also filed a petition for attorney's fees pursuant to section 744.108, which was considered in the same hearing. The circuit court postponed awarding fees to counsel for Thompson’s guardian until counsel could analyze any issues of duplication of attorney work. The circuit court's ruling regarding the attorney’s fees sought by counsel for Thompson's guardian is not at issue in our review of this case.

      . Section 744.424 was repealed in 1989. See ch. 89-96, § 68, Laws of Fla. In 1991, rule 5.700(a) was amended to conform to statutory requirements. See In re Amendments to the Fla. Probate Rules, 584 So.2d 964, 990 (Fla. 1991). Rule 5.700(a) now provides that "[t]he ward, or any other interested person, may file an objection to any part of a guardianship report within the time provided by law.”

      . In his first will, the ward appointed his daughter-in-law as the personal representative of his estate and she took actions with respect to the estate's assets in this capacity. See 645 So.2d at 1014. However, it was subsequently discovered that the will appointing the daughter-in-law as personal representative had been superseded by another will that named Sun Bank and Trust Company (Sun Bank) as the personal representative of the ward’s estate. See id.

      . No notice is required when the petition is “to authorize sale of perishable personal property or of property rapidly deteriorating.” Fla. Prob. R. 5.630(b).

      . Although officially referred to as the Florida Probate Rules, Parts I and III apply to guardianship proceedings. See Fla. Prob. R. 5.010.

      . See Fla. Prob. R. 5.010 ("These rules govern the procedure in all probate and guardianship proceedings and shall be known as the Florida Probate Rules and may be cited as Fla. Prob. R. Part I applies to all proceedings. Part II applies to probate alone, Part III applies to guardianship alone, and Part IV applies to expedited judicial intervention concerning medical treatment procedures. The Florida Rules of Civil Procedure apply only as provided herein.") (emphasis supplied).

      . See § 744.1025, Fla. Stat. (2006) (“The definitions contained in the Florida Probate Code shall be applicable to the Florida Guardianship Law, unless the context requires otherwise, insofar as such definitions do not conflict with definitions contained in this law.”); Fla. Prob. R. 5.015(a) (“The definitions ... stated or referred to in ... Chapters 731, 732, 733, 734, 735, 737, 738, and 744, Florida Statutes, as amended from time to time, shall apply to these rules, unless otherwise defined in these rules.”).

      . See § 744.102(9), Fla. Stat. (2006) (defining "guardian” as “a person who has been appointed by the court to act on behalf of a ward's person or property, or both”); § 744.102(14), Fla. Stat. (2006) (defining "next of kin” as “those persons who would be heirs at law of the ward or alleged incapacitated person if the person were deceased and includes the lineal descendants of the ward or alleged incapacitated person”); § 744.102(22), Fla. Stat. (2006) (defining "ward" as “a person for whom a guardian has been appointed”).

      . The petitioners assert that they filed a motion requesting notice and copies of all pleadings. However, a review of the motion cited reveals that this was a motion for sanctions that alleged that the guardian’s attorney failed to provide the petitioners with a courtesy copy of a proposed order. The motion did ask the trial court to issue an order "admonishing” that all proposed orders and communications with the court be provided to the petitioners. However, the petitioners never made a formal request for notice of further proceedings under the rules, and the trial court denied the motion for sanctions.

      . See Alex Kozinski & Eugene Vokokh, Lawsuit, Shmawsu.it, 103 Yale L.J. 463, 467 (1993) ("The most famous definition of ‘chutzpah’ is, of course, itself law-themed: chutzpah is when a man kills both his parents and begs the court for mercy because he's an orphan.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Costell WALTON, Jr., Respondent.
    No. SC05-774.
    Supreme Court of Florida.
    Dec. 14, 2006.
    Rehearing Denied March 16, 2007.

      John F. Harkness, Jr., Executive Director, Kenneth L. Marvin, Director of Lawyer Regulation, and John Anthony Boggs, Staff Counsel, The Florida Bar, Tallahassee, FL, Lorraine Christine Hoff-mann, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, and James David Camp, III, Chair, Seventeenth Judicial Circuit, Grievance Committee “A,” for Petitioner.
    Kevin P. Tynan and James 0. Walker, III of Richardson and Tynan, PLC, Tama-rac, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical breaches by Cos-tell Walton, Jr. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons explained herein, we approve the referee’s recommendation that Walton be suspended for ninety-one days. We disapprove the referee’s recommendation that Walton be ordered to reimburse Louis Asbate for attorney fees and costs incurred by him as a result of Walton’s misconduct. We also disapprove the referee’s recommendation that Walton have his practice evaluated by The Florida Bar’s Law Office Management Assistance Service (LOMAS). Instead, we order Walton to take The Florida Bar’s professionalism course.

FACTS

The. Bar filed a single-count complaint against Walton. The complaint alleged Walton violated the Rules of Professional Conduct; committed an act that was unlawful or contrary to honesty and justice; failed to be professionally competent; failed to be reasonably diligent and prompt; and engaged in conduct prejudicial to the administration of justice, all pursuant to his representation of the plaintiffs in a civil case after a judgment in his clients’ favor had been entered. A formal hearing was held on the complaint on October 10, 2005. The referee issued a report on November 14, 2005.

In the report, the referee found that Walton represented the plaintiffs in a civil suit against Louis and Dawn Asbate. The civil trial court awarded Walton’s clients a judgment for $3000, plus $250 in costs with interest. The $3000 had been previously deposited into the registry of the court and was available to the plaintiffs at any time. Louis Asbate wanted to pay the costs immediately to avoid the possibility that the unpaid judgment would have a negative impact on his credit rating, but, on the advice of his counsel, waited a few months until his liability for attorney fees diminished. Three months later, Asbate’s attorney forwarded a check to Walton for the $250 in costs plus $4.08 to cover the seven percent interest for the three-month period. The attorney also demanded a recorded satisfaction of judgment in return.

The referee found that Walton wrongfully refused to record a satisfaction of judgment as requested. After the opposing party filed a complaint against him with The Florida Bar, Walton told the Bar that he “had no obligation to Mr. Asbate.” In a subsequent letter, he told the Bar that Asbate had “some mental disorder” and that he was a “liar.”

In a chance meeting four months after the satisfaction of judgment was first requested, Walton told opposing counsel, for the first time, that the check for costs and interest which had been forwarded to him was twenty-three cents less than what he thought it should have been. Opposing counsel immediately provided the missing twenty-three cents, from his pocket, to resolve the matter. Walton refused to accept the money, insisting that the entire amount due be sent to him in one check. He returned the check that had been sent to him in May 2004 to opposing counsel.

Walton received what he considered satisfaction in full in November 2004. Although his clients had been paid what they were owed according to Walton’s own calculation, he still refused to provide a recorded satisfaction of judgment. Finally, in January 2005, he sent an unrecorded satisfaction of judgment directly to Asbate. Asbate ultimately recorded the satisfaction of judgment himself, after paying the requisite fee.

More than a year after the judgment had been satisfied, and well after Asbate had recorded the satisfaction of judgment, Walton filed a “Motion for Clarification and/or Determination of When Judgment was Satisfied” in the county court case, which had been closed for some time. The trial court determined the amount originally tendered, $254.08, had been short by only fourteen cents, not the twenty-three cents calculated by Walton.

The referee found Walton filed the motion to give himself a defense in the Bar disciplinary proceedings and that the motion was “frivolous and prejudicial to the administration of justice.” Based upon careful observation of the demeanor of the witnesses at the final hearing, the referee found that Walton’s conduct had been willful, intentional, and motivated by personal antipathy toward Asbate.

With regard to guilt, the referee found that Walton’s conduct violated Rules Regulating the Florida Bar 3-4.2 (violating Rules of Professional Conduct is a cause for discipline), 3-4.3 (commission by a lawyer of any act that is unlawful or contrary to honesty and justice can be cause for discipline), 4-1.1 (professional competence), 4-1.3 (reasonable diligence and promptness), 4-8.4(a) (violation of Rules of Professional Conduct constitutes misconduct), and 4-8.4(d) (conduct prejudicial to the administration of justice, including disparaging litigants).

With regard to discipline, the referee recommended that Walton be suspended for ninety-one days; ordered to pay restitution to Asbate for costs and legal fees, if any, incurred as a result of Walton’s misconduct; undergo evaluation of his law office management by LOMAS as a condition for reinstatement; and pay the Bar’s costs. In recommending a ninety-one-day suspension, the referee recognized that neglecting a client matter is generally punishable by a suspension of less than ninety days, but justified the more severe penalty by the cumulative nature of Walton’s misconduct and the fact that his actions had been motivated by his personal animus toward the opposing party.

The referee found three aggravating factors: prior discipline, dishonest or selfish motive, and substantial experience in the practice of law. The referee did not find any mitigating factors.

Walton petitioned for review of the referee’s findings of fact and conclusions as to guilt and the referee’s recommended discipline.

ANALYSIS

Findings of Fact and Conclusions as to Guilt

“The party contending that the referee’s findings of fact and conclusions as to guilt are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions.” Fla. Bar v. Nowacki 697 So.2d 828, 832 (Fla.1997). Walton failed to satisfy this burden, because there is competent, substantial evidence in the record to support the referee’s findings in this case.

The crux of Walton’s argument on this issue was not that the factual findings are unsupported, but that the findings that he violated rules 4-1.1 (competent representation), 4-1.3 (reasonable diligence and promptness), and 4-8.4(d) (conduct prejudicial to the administration of justice) are not supported by the facts. Further, Walton argues that because rules 3^.2, 3-4.4, and 4-8.4(a) are all “piling on” violations, i.e., violations based on a respondent violating some other rule, these violations are also unsupported.

Contrary to Walton’s argument, the facts found by the referee support the referee’s conclusion that Walton failed to provide competent representation to his clients with reasonable diligence and promptness, and that he engaged in conduct prejudicial to the administration of justice. Although attorneys may not have a duty to prepare and record a satisfaction of judgment until full satisfaction is received, Walton had a duty to his clients to obtain the money they were owed as promptly as possible. Reasonable diligence and competent representation on Walton’s part required him to inform his clients that they had received payment and that it was short by a mere twenty-three cents. If his clients had told him they were unwilling to accept a payment short by that amount, his duty to his clients would have then required him to immediately communicate the shortage and his clients’ unwillingness to waive it to opposing counsel so the shortage could be quickly cured. Instead, he did nothing. His clients were forced to wait, from May 2004 (the time the first offer, short by twenty-three cents, was tendered) until November 2004 (the time the complete amount, with the additional twenty-three cents, was received) to obtain reimbursement for their costs. This was longer than the time between the entry of judgment and the original proffer. It is clear from these events that Walton put his own negative feelings toward Asbate ahead of the interests of his clients.

Walton’s failure to record the satisfaction of judgment prior to Asbate’s recording it, despite the fact he had a statutory obligation to do so, was prejudicial to the administration of justice. Also prejudicial to the administration of justice were his representations to the Bar that the opposing party had some kind of mental disorder and was a liar, as well as his filing of the motion for clarification in the trial court months after the matter had been closed. The only conceivable reason Walton had to file the motion was so he could argue before the instant referee that the amount tendered in May 2004 was not full satisfaction of the judgment. That motive is clear because, by the time he filed the motion, the judgment had been satisfied and the satisfaction of judgment had been recorded.

The findings of fact and the record are sufficient to support the referee’s findings that Walton’s conduct violated Rules Regulating the Florida Bar 4-1.1, 4-1.3, and 4-8.4(d). These violations are sufficient to support the findings that Walton also violated rules 3-4.2, 3-4.4, and 4-8.4(a). Accordingly, we approve the referee’s findings of guilt.

Recommended Discipline

Generally, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Brown, 905 So.2d 76, 83-84 (Fla.2005); Fla. Bar v. Miller, 863 So.2d 231, 235 (Fla.2003). In this case, the referee recommends that Walton be suspended for ninety-one days; be ordered to pay Asbate’s attorney’s fees and costs, if any, caused by Walton’s conduct; be ordered to have his law office evaluated by LOMAS; and be ordered to pay the Bar’s costs.

The Ninety-One-Day Suspension

The recommendation of a ninety-one-day suspension has a reasonable basis in the case law and the standards for the reasons discussed below.

We discuss the standards first. The Standards for Imposing Lawyer Sanctions cited by the referee, 4.42 and 6.22, support a suspension, but do not distinguish between rehabilitative and nonrehabilitative suspensions. As Walton concedes a suspension is appropriate, but argues that a ten-day suspension is the appropriate length, the standards are helpful to our analysis in this case only as a starting point.

We now address whether the recommendation has a reasonable basis in the case law. The case of Florida Bar v. Nunes, 734 So.2d 393 (Fla.1999), provides guidance. In that case, the Court suspended an attorney for three years after he made disparaging remarks concerning opposing counsel and trial judges and filed a frivolous lawsuit against several former clients seeking to recover, in quantum meruit, income lost to him by virtue of his disciplinary suspension.

In the case currently before the Court, Walton failed to inform his clients that an amount short by pennies had been tendered in satisfaction so that they could make an informed decision as to whether they were willing to waive the shortage. He failed to tell opposing counsel of the shortage so that the de minimis mistake could be rectified. Then, after the shortage was rectified, he failed to provide a recorded satisfaction of judgment, as required by statute. In addition, he told the Bar that Asbate, who had complained to the Bar, was a “liar” and had a “mental disorder.” Months after the satisfaction of judgment had been recorded, Walton filed a frivolous motion in the trial court to try to create a defense for himself in the Bar disciplinary proceeding.

Further, Walton has been less than candid with the referee and this Court. At the hearing before the referee, Walton claimed his failure to record the satisfaction was an “oversight.” In his brief, he claimed he sent the unrecorded satisfaction directly to the opposing party, not opposing counsel, for review. These explanations are inconsistent.

Walton’s actions were motivated by his personal, negative feelings toward Asbate. The pettiness of his behavior hurt his clients, the opposing party, and, ultimately, the profession. Walton’s conduct also violated his oath of admission to the Bar when he swore to “not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land”; to “employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law”; to “abstain from all offensive personality and advance no fact prejudicial to the hon- or or reputation of a party or witness, unless required by the justice of the cause with which I am charged”; and to never “delay anyone’s cause for ... malice.”

We reject Walton’s argument that the referee placed too much emphasis on his prior disciplinary history. In this case, Walton has been previously disciplined three times. See Fla. Bar v. Walton, 545 So.2d 1369 (Fla.1989) (public reprimand); Fla. Bar v. Walton, 601 So.2d 554 (Fla.1991) (ten-day suspension for a criminal conviction); Fla. Bar v. Walton, 613 So.2d 12 (Fla.1993) (sixty-day suspension and two years’ probation for trust account violations). Walton frankly admits his prior history should subject him to an increased sanction, but argues that it is not so egregious or recent enough to warrant a drastic increase in his sanction. Even though we note the most recent discipline occurred thirteen years ago, we find that Walton’s is not the kind of “minor misconduct” that can be ignored after seven years. We are inclined to agree that Walton’s disciplinary history would not support an increase from what would otherwise merit a ten-day suspension to a ninety-one-day suspension. However, we disagree that Walton’s conduct would merit no more than a ten-day suspension in the absence of a disciplinary history. Walton used the law and the court system to engage in a petty vendetta. The fact that he has been disciplined on three prior occasions merely confirms the propriety of a ninety-one-day suspension in this case.

As an officer of the court, Walton should have been able to curb and control such childish peevishness as was demonstrated here. When one considers the time and resources wasted, by the parties, the attorneys, the trial court, the Bar, the referee, and, now, this Court, over twenty-three (or fourteen) cents, it is clear that a ninety-one-day suspension is appropriate.

As the referee’s recommendation for a ninety-one-day suspension has a reasonable basis in case law and the standards, we approve that portion of the referee’s recommendation of discipline and suspend Walton for ninety-one days.

Restitution

Walton argues that the referee’s recommendation that he be ordered to provide restitution to Asbate for the attorney’s fees and costs is inappropriate. We agree. The Court has a firmly established policy against awarding restitution to third parties in disciplinary matters. In 1989, in Florida Bar v. Della-Donna, 583 So.2d 307 (Fla.1989), we stated that “[d]isciplin-ary actions cannot be used as a substitute for what should be addressed in private civil actions against attorneys. They are not intended as forums for litigating claims between attorneys and third parties.... We cannot and should not turn restitution as a condition to practicing our profession into a judgment for a third party.” Id. at 312 (citations omitted).

Rule 3-5.1(i) of the Rules Regulating the Florida Bar is in accord. It provides that a referee may order restitution if a “respondent has received a clearly excessive, illegal, or prohibited fee or ... the respondent has converted trust funds or property.” Neither of these situations exists here.

Accordingly, we disapprove the referee’s recommendation concerning restitution.

LOMAS

The referee’s recommendation that Walton be ordered to have his law firm evaluated by LOMAS is inappropriate under these circumstances. The recommendation does not agree with the referee’s findings that Walton’s actions were intentional and motivated by a personal animus. LOMAS evaluation would be appropriate if Walton’s misconduct were the result of sloppy management or inadvertence. After considering the facts and violations found by the referee, we hereby require Walton to attend and complete additional training in professionalism rather than undergo a LOMAS evaluation.

CONCLUSION

Accordingly, Costell Walton, Jr. is hereby suspended from the practice of law for ninety-one days. In addition, as a condition of reinstatement, Walton must submit proof that he has attended The Florida Bar’s professionalism course. Walton’s suspension will be effective thirty days from the filing of this opinion so that Walton can close out his practice and protect the interests of existing clients. If Walton notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Walton shall accept no new business from the date this opinion is filed until he is reinstated pursuant to Rule Regulating the Florida Bar 3-7.10.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Costell Walton, Jr. in the amount of $3,128.95, for which sum let execution issue.

It is so ordered.

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

      . Judgment was entered on February 12, 2004. The check for $254.08 was sent to Walton on May 10, 2004.

      . Walton also petitioned for review of the referee’s denial of Walton’s motion to dismiss the Bar’s complaint. However, as he did not raise this issue in his briefs, he has abandoned it.

      . See § 701.04(1), Fla. Stat. (2005).

      . Section 701.04(1), Florida Statutes, provides in pertinent part (emphasis added): Whenever the amount of money due on any mortgage, lien, or judgment shall be fully paid to the person or party entitled to the payment thereof, the mortgagee, creditor, or assignee, or the attorney of record in the case of a judgment, to whom such payment shall have been made, shall execute in writing an instrument acknowledging satisfaction of said mortgage, lien, or judgment and have the same acknowledged, or proven, and duly entered of record in the book provided by law for such purposes in the proper county.

      . Standard 9.22(a) of the Florida Standards for Imposing Lawyer Sanctions provides that prior disciplinary offenses may be considered in aggravation except that a “finding of minor misconduct shall not be considered as an aggravating factor” after "7 or more years in which no disciplinary sanction has been imposed.”


author: PER CURIAM. ANSTEAD, J., PARIENTE, J.,

text:
    In re AMENDMENTS TO THE FLORIDA RULES OF JUVENILE PROCEDURE.
    No. SC05-1303.
    Supreme Court of Florida.
    March 15, 2007.
    Mary Katherine Wimsett, Chair, Gaines-ville, Florida, Alan Abramowitz, Past-Chair, Orlando, Florida, Juvenile Court Rules Committee, John F. Harkness, Jr., Executive Director, Ellen H. Sloyer, Bar Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner.
    Karen Gievers, Children’s Advocacy Foundation, Tallahassee, Florida; Bernard P. Perlmutter, University of Miami School of Law Children and Youth Law Clinic, Coral Gables, Florida; John J. Copelan, Jr., General Counsel, Peggy Sanford, Deputy General Counsel, and Rebecca Kapus-ta, Assistant General Counsel, the Florida Department of Children and Families, Tallahassee, Florida; Dennis W. Moore, General Counsel, Statewide Guardian ad Li-tem Program, Tallahassee, Florida; and Robert S. Jacobs, Advocacy Center for Persons with Disabilities, Inc., Tampa, Florida, and Sylvia W. Smith, Advocacy Center for Person with Disabilities, Inc., Tallahassee, Florida, Responding with comments.
   PER CURIAM.

In November 2005, the Court, on petition by the Juvenile Court Rules Committee, adopted a number of amendments to the Florida Rules of Juvenile Procedure in response to then recent legislation. See In re Amend, to Fla. Rules of Juv. Pro., 915 So.2d 592 (Fla.2005). Upon considering the proposals and reviewing the relevant legislation, the Court adopted the amendments as proposed and allowed interested persons to file comments within sixty days after the Court’s opinion. Id. at 592.

One of the amendments adopted by the Court was new rule 8.355, entitled Administration of Psychotropic Medication to a Child in Shelter Care or in Foster Care When Parental Consent Has Not Been Obtained. New rule 8.355 provides procedures to implement section 39.407(3), Florida Statutes (2006), which was created by chapter 2005-65, section 2, Laws of Florida. Section 39.407(3) requires court authorization for the administration of psychotropic medication to children in shelter or foster care when parental consent cannot be obtained. The new rule sets forth procedures governing a motion by the Department of Children and Families and a court order for administration of psychotropic medication, as required by section 39.407(3)(c). It also creates procedures for emergency situations such as when a delay in authorization could cause significant harm or when the child has been placed in a psychiatric facility on an emergency basis.

The Children’s Advocacy Foundation, Inc., the University of Miami School of Law Children and Youth Law Clinic, Florida’s Children First, Jacksonville Area Legal Aid, University of Miami Law Professor Bruce J. Winick, and Dr. Lester P. Hartswick, M.D. filed comments with regard to new rule 8.355. No comments were received with regard to any of the other amendments.

After consideration of the comments received with regard to rule 8.355, the Court directed that this case be set for oral argument, and an order was issued specifically inviting additional comments from the Guardian Ad Litem Program and the Florida Department of Children and Families. The Court also requested that the Juvenile Court Rules Committee file a response to all comments filed with the Court. Oral argument was heard in this matter on October 30, 2006.

The main issue raised by the comments and at oral argument is whether rule 8.355 should be amended to require the appointment of a guardian ad litem and an attorney ad litem to represent the child in proceedings under the rule. The comments contend that requiring such representation is necessary to ensure that the court’s decision to authorize the administration of psychotropic medication is informed by accurate and up-to-date information about the health status and needs of the child. Further, they raise the concern that without representation, it may be impossible for a child to meaningfully voice objections to the prescribed treatment and participate in a hearing as provided in the statute.

The Court shares the concerns expressed in these comments. Before authorizing the administration of psychotropic medication to children in the care and custody of the State, it is essential that a court have access to the information necessary to make an informed decision. Additionally, it is important that the child be afforded the opportunity for meaningful, age-appropriate participation in the process. Section 39.407(3) provides the right of any party to object to a motion for court approval of administration of psychotropic medication within two working days of being notified of the motion. If such an objection is filed, the court must hold a hearing on the motion. However, without representation, it is unlikely that the most interested party, the child to whom the medication is to be given, would be able to exercise the right to object to the motion, much less meaningfully participate in a hearing.

Although we agree that in many cases, representation of the child is essential in these proceedings, we decline to insert a requirement for such representation into rule 8.355 for several reasons. First, in the interest of ensuring that the decision to medicate a child is fully informed, section 39.407(3) imposes detailed requirements upon the Department of Children and Families. The statute mandates that at the time the department seeks a medical evaluation to determine the need for psychotropic medication for a child, it must provide to the evaluating physician all pertinent medical information known to the department concerning that child. § 39.407(3)(a)(2), Fla. Stat. (2006). If a motion is ultimately filed seeking court approval to administer the medication— which will only occur if parental consent cannot be obtained — the motion must be supported by the prescribing physician’s signed medical report, which must include a “statement indicating that the physician has reviewed all medical information concerning the child which has been provided.” § 39.407(3)(c)(2), Fla. Stat. (2006).

The statute also requires that the prescribing physician’s medical report include: (1) the name and dosage range of the medication; (2) a statement that there is a need for the prescribed medication based upon the child’s diagnosed medical condition; (3) a statement that the prescribed medication is appropriate for treatment of the child’s diagnosed medical condition and the behaviors and symptoms the medication is expected to address; (4) an explanation of the nature and purpose of the treatment, the risks, side effects, and contraindications of the medication, drug interaction precautions, possible effects of discontinuing the medication, and how treatment will be monitored; (5) a statement' that the aforementioned explanation was provided to the child, if age-appropriate, and to the child’s caregiver; (6) documentation addressing whether the medication will replace or supplement other currently prescribed medications or treatments; (7) documentation addressing the length of time the child is expected to take the medication; and (8) documentation addressing “any additional medical, mental health, behavioral, counseling, or other services that the prescribing physician recommends.” § 39.407(3)(c)(l)-(5), Fla. Stat. (2006).

Further, at any hearing held on a motion for court authorization to administer psychotropic medication, the court must ask the department “whether additional medical, mental health, behavioral, counseling, or other services are being provided to the child by the department which the prescribing physician considers to be necessary or beneficial ... and which the physician recommends or expects to provide to the child in concert with the medication.” § 39.407(3)(d)(l), Fla. Stat. (2006); see also Fla. R. Juv. P. 8.355(b)(2)(B). The court is also authorized to order additional medical consultation and to require the department to obtain a second opinion. § 39.407(3)(d)(l), Fla. Stat. (2006); see also Fla. R. Juv. P. 8.355(b)(1). Through all of the above provisions, the statutory language and the rule attempt to ensure that the court’s ruling on the motion for court authorization tó administer the medication is based upon the most complete medical information that is available.

Second, the Legislature has declared its intent and goal that all dependent children “have a guardian ad litem appointed to represent, within reason, their best interests, and where appropriate, an attorney ad litem appointed to represent their legal interests.” § 39.4085(20), Fla. Stat. (2006). By statute, a guardian ad litem must be appointed by the court “at the earliest possible time ... in any child abuse, abandonment, or neglect judicial proceeding.” § 39.822(1), Fla. Stat. (2006). Additionally, at every shelter hearing, often the first point at which a child who has been taken into custody by the department comes into contact with the court system, the court is required to “[a]ppoint a guardian ad litem to represent the best interest of the child, unless the court finds that such representation is unnecessary.” § 39.402(8)(c)(l), Fla. Stat. (2006). Accordingly, it would appear that in most cases, children in the custody and care of the department should already have representation in the form of a guardian ad litem.

Moreover, at any stage of a dependency proceeding, including the filing of a motion for court authorization to administer psychotropic medication, the court is authorized under rule 8.215 to appoint a guardian ad litem and, in fact, is required to “ascertain at each stage of the proceeding whether a guardian ad litem should be appointed if one has not yet been appointed.” Fla. R. Juv. P. 8.215(b). Similarly, under Florida Rule of Juvenile Procedure 8.217, the court, at any stage of a dependency proceeding, “may consider whether an attorney ad litem is necessary to represent any child alleged to be dependent, if one has not already been appointed.” Fla. R. Juv. P. 8.217(a). Under these provisions, if the department were to file a motion for court authorization to administer psychotropic medication to a child not already represented by a guardian ad litem or attorney ad litem, the court would have the discretion to appoint such representation for the child. Given the reality that Florida is still working toward full funding to meet the legislative goal that all dependent children be represented by a guardian ad litem and, where appropriate, an attorney ad litem, we conclude that discretion to appoint such representation for a child in the limited context of proceedings for court authorization of administration of psychotropic medication should remain with the trial court, to be exercised on a ease-by-case basis. Accordingly, we decline to amend the language of the rule to eliminate that discretion.

In its comments and arguments, the Guardian Ad Litem Program has suggested two additional amendments to rule 8.355 that bear discussion. The program first suggests that the rule be amended to require the presence of the child at a hearing on a motion for court authorization to administer psychotropic medication to the child. As for this suggestion, while we decline to amend the rule to require the presence of the child in all cases, we note that nothing in the statute or current rule precludes the presence of the subject child at the hearing. Additionally, as discussed above, we recognize the importance of affording the child the opportunity for meaningful, age-appropriate participation in the process, and we encourage courts to allow the presence and participation of the child where appropriate.

The Program also suggests that the rule be amended to clarify that a party may still file an objection to psychotropic medication even after a court, on the department’s motion, authorizes the administration of the medication. Section 39.407(3)(d)(l) states that “[i]f any party objects to the department’s motion, that party shall file the objection within 2 working days after being notified of the department’s motion.” § 39.407(3j(d)(l), Fla. Stat. (2006). If an objection is filed, the court must hold a hearing “as soon as possible before authorizing the department to initially provide or to continue providing psychotropic medication to a child in the legal custody of the department.” Id. Thus, while the provisions of the statute would permit a court, in the absence of a timely objection, to authorize the administration of psychotropic medication without a hearing, and the rule as adopted so provides, nothing in the statute expressly precludes a party from filing an objection after the two-day time limit has passed and having that objection addressed by the court at a hearing. Certainly, changed circumstances or subsequent medical or psychiatric evaluations could warrant discontinuation of, or a change in, medication for the child. The statute clearly does not preclude the court from entertaining such an objection, and we encourage vigilance on the part of the courts in attending to these matters.

In conclusion, for the reasons explained above, we decline to amend rule 8.355, Administration of Psychotropic Medication to a Child in Shelter Care or in Foster Care When Parental Consent Has Not Been Obtained, as suggested in the comments provided by interested parties in this matter. We also wish to express our sincere appreciation for the hard work and vigilance of the Juvenile Court Rules Committee in addressing the matters presented herein and thank all those participating in this process in the interest of Florida’s children.

It is so ordered.

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

ANSTEAD, J., concurs in part and dissents in part with an opinion, in which PARIENTE, J., concurs.

PARIENTE, J., concurs in part and dissents in part with an opinion, in which ANSTEAD, J., concurs.

ANSTEAD, J.,

concurring in part and dissenting in part.

While I generally concur in the observations of the majority, I cannot agree that the need for the appointment of either a guardian ad litem or attorney ad litem should not be mandated at the time the Department of Children and Families seeks to have psychotropic medication administered to a child in its custody. It is apparent that in seeking the administration of such medications the Department has identified a child that has serious medical and mental health issues, and, in turn, a child that has a special and priority need for the services of a guardian or attorney ad litem to make certain that the child’s interests are given particularized attention. This Court has not been reluctant to recognize the special needs of children with mental health issues and we should not hesitate to recognize those needs here. Cf M.W. v. Davis, 756 So.2d 90 (Fla.2000) (mandating meaningful opportunity to be heard for child before placement in mental health facility).

Although I sympathize with the majority’s concerns about the use of limited resources, it seems apparent that some form of prioritization is necessary and already in place in the system for allocation of guardian resources. However, the existing method for allocating such resources is largely haphazard and varies from location to location despite the commendable efforts of the GAL program to bring about uniformity. By identifying a class of children with serious medical or mental health issues as particularly in need of guardian services we would be helping rather than hindering the present system.

PARIENTE, J., concurs.

PARIENTE, J.,

concurring in part and dissenting in part.

Even in the absence of a specific rule requirement, I urge all trial judges to ensure that children have the necessary representation and an opportunity to be heard in court before making critical decisions regarding the administration of psycho-therapeutic (psychotropic) medication. The Legislature’s 2005 enactment of the provisions in section 39.407(3), Florida Statutes (2006), reflects a widespread concern about the appropriate administration of psychotropic medication to children in foster care. The legislation also reflects the view that psychotropic medication should only be administered on an individual basis, with proper monitoring, and in combination with other behavioral health services. Although the Department of Children and Families (DCF) reported a slight percentage decline in the use of psychotropic medication by children of all age groups in DCF’s care between September-November 2004 and September-November 2005, almost twelve percent of the children in DCF’s care received one or more of these medications. In addition, DCF noted that the number of children ages thirteen through seventeen receiving psychotropic medication increased during this period, particularly among those in “licensed substitute care” and “out-of-home care.” These numbers are startling, with 44.7 percent of those children in “licensed substitute care” (up from 32.7 percent) and 32 percent of those children in “out-of-home care” (up from 26.4 percent) receiving one or more psychotropic medications.

The statute requires DCF to follow detailed procedures before administering these medications. See § 39.407(3), Fla. Stat. Among these procedures is the right of any party to object to administration of psychotropic medication. See § 39.407(3)(d)(l), Fla. Stat. (2006). I therefore agree with Justice Anstead that the rule should at the very least mandate that a Guardian Ad Litem (GAL) or Attorney Ad Litem (AAL) be appointed for any child who may be administered psychotropic medication to ensure that the child has a meaningful opportunity to be heard before such a significant decision. A rule providing for the appointment of a GAL or AAL would do no more than effectuate the right to be heard granted by the statute.

By pointing to other statutory provisions and our existing rules that provide trial courts with authority to appoint GALs and AALs for children, the majority assumes that many of these children already have representation. Unfortunately, we were unable to obtain statistics showing the exact number of children who are unrepresented at the point DCF seeks approval for the administration of psychotropic medication. This case highlights the need for a uniform statewide system that tracks all children in the foster care system, includes this type of detail, and ensures that this information is made available to the courts. While DCF and the judicial system have been working together to ensure appropriate case management, much remains to be done.

This case also highlights the compelling need for full legislative funding of the statutory mandate requiring a guardian ad litem for each child in foster care. As of August 2006, there were 43,765 children under DCF supervision and involved in court proceedings. See Guardian Ad Li-tem 2006 Annual Report 3. The Statewide GAL Office represented 28,179 of those children, and its goal by December 2006 was to represent 32,787 children. See id. This target, when met, means that the Statewide GAL Office will be providing representation in approximately 75% of these cases. Clearly, children DCF has identified as requiring psychotropic medication should be among those who not only receive GAL representation but also receive representation through an attorney knowledgeable about these issues.

As the majority points out, it is the intent of the Legislature that all dependent children have a “guardian ad litem appointed to represent, within reason, their best interests, and where appropriate, an attorney ad litem appointed to represent their legal interests.” § 39.4085(20), Fla. Stat. (2006). I acknowledge that the legislative and executive branches have made enormous strides in the past several years in increasing funding to the Statewide GAL Office. I urge that this year, the State fulfill this statutory mandate by fully funding the GAL Office so that each child has, at a minimum, guardian ad litem representation, and attorney ad litem representation where necessary. In my view, this State should do no less for our most vulnerable children — those who are in the court system because of an adult’s abuse, neglect, or abandonment. The benefits of full funding for GALs and AALs for children include ensuring that children’s voices are heard, that children receive needed services while in foster care, and that everything possible is done to reduce the amount of time these children are without permanent homes.

ANSTEAD, J., concurs.

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

      . The University of Miami School of Law Children and Youth Law Clinic, Florida’s Children First, Jacksonville Area Legal Aid, University of Miami Law Professor Bruce J. Winick, and Dr. Lester P. Hartswick, M.D. filed a joint comment, which was also subsequently joined by the Advocacy Center for Persons With Disabilities, Inc.

      . The guardian ad litem must be a responsible adult, who may or may not be an attorney, or a certified guardian ad litem program. The guardian ad litem is charged with gathering information concerning matters arising in the case and filing a written report, including “a summary of the guardian ad lilem’s findings, a statement of the wishes of the child, and the recommendations of the guardian ad litem.” Fla. R. Juv. P. 8.215(c)(1).

      . See Fla. R. Juv. P. 8.355(b)(1).

      . In general terms, psychotropic medication is "any medication capable of affecting the mind, emotions, and behavior.” Kate O'Leary, An Advocate’s Guide to the Use of Psychotropic Medications in Children and Adolescents 25 ABA Child L. Prac. 85, 85 (Aug. 2006). The seven most common psychotic disorders are schizophrenia, bipolar disorder, depression, psychotic depression, attention deficiphyperactivity disorder, anxiety, obsessive compulsive disorder, and panic disorder. Id. There is no definition of psychotropic medication in chapter 39, Florida Statutes. But see § 916.12(5), Fla. Stat. (2006) (defining "psychotropic medication” as "any drug or compound used to treat mental or emotional disorders affecting the mind, behavior, intellectual functions, perception, moods, or emotions and includes antipsychotic, antidepressant, antimanic, and antianxiety drugs”); § 1006.0625, Fla. Stat. (2006) (defining “psychotropic medication” as "a prescription medication that is used for the treatment of mental disorders and includes, without limitation, antihypnotics, antipsychotics, antidepressants, anxiety agents, sedatives, psycho-motor stimulants, and mood stabilizers”).

      . Frank M. Platt, Fla. Dep’t of Children and Families, Report Mandated by Chapter 2005-65 of the Laws of Florida, Section 5 Mental Health Services for. Minors and Incapacitated Persons (Psychotherapeutic Medications) 1 (2006).

      . Florida Department of Children and Families, Report to the Senate Committee on Children and Families: Ensuring Appropriate and Informed Use of Psychotherapeutic Medications for Florida’s Children in DCF Care and Custody 1 (2006). DCF also reported that "[a]n estimated 40 percent of the child welfare population meet criteria for serious emotional disturbance (SED) compared to 10 percent of children in the general population.” Id. The report does not define SED or discuss the reason for the disparity between the number of children who meet the criteria for SED and the number of children receiving psychotropic medications. Hopefully, the children with SED are receiving other services and therapies to address these serious emotional issues.

      . Id. at 4.

      . Id: '

      . I would follow the recommendations of the various child advocacy groups that recommend both an appointed GAL and AAL.

      . HomeSafeNet is a statewide database created by DCF. DCF's October 2006 report states that "enhancements” have been made "to include information on medication use and thereby provide the ability to more intensively monitor use of psychotherapeutic medications in Florida's child welfare system” in real time. Report to the Senate Committee on Children and Families, supra note 7, at 5.

      . The GAL Office, in its comment to this Court, states that the “GAL uses a team consisting of a volunteer or staff member and an attorney to represent the child’s best interests in the proceedings.”

      . Funding for the GAL Office rose from $10.4 million during the 2003-2004 fiscal year to $34 million for the 2006-2007 fiscal year. However, the current GAL funding is miniscule when viewed in light of the 2006-2007 State of Florida budget of $70.9 billion.

      . I recognize that the GAL Office expressed concern that due to limited resources, a rule requiring appointment of GALs in all cases in which DCF moves to administer psychotropic medication would force the program to withdraw from current cases. Full funding of the GAL Office would obviate the need to make difficult choices as to which children are afforded representation in dependency proceedings.

      . Hopefully, this statutory mandate can be fulfilled without placing the judicial branch in budgetary competition with the GAL Office. Unfortunately, in the past few legislative sessions, the judicial branch has been forced to compete with the GAL Office for these scarce resources even though the total budget of the judicial branch is less than one percent (0.6%) of the total state budget of $70.9 billion.


author: KELLY, Judge.

text:
    R. Thomas STANLEY, John D. Stanley, and Gene E. Stanley, Appellants, v. GREYSTONE MEDICAL GROUP, INC., Appellee.
    No. 2D04-5416.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.
    Stuart C. Markman, Robert W. Ritsch, and Katherine E. Yanes of Kynes, Mark-man & Felman, P.A., Tampa, and Joseph H. Varner, III of Knopik Varner Moore, Tampa, for Appellants.
    Robert Trohn, Monterey Campbell, and Kristie Hatcher-Bolin of GrayRobinson, P.A., Lakeland, and Thomas C. Saunders, Bartow, for Appellee.
   KELLY, Judge.

R. Thomas, John D., and Gene E. Stanley appeal from a judgment in favor of Greystone Medical Group, Inc. The judgment transfers to Greystone the ownership of patent and intellectual property rights to pharmaceutical compounds developed by the Stanleys, and it vacates a 1996 final judgment that had awarded those rights to the Stanleys, The trial court’s asserted basis for vacating the 1996 judgment was that the Stanleys obtained it by “procedural fraud on the court,” a conclusion Greystone has not specifically attempted to defend on appeal. Instead, Greystone defends the trial court’s decision by arguing on appeal that the 1996 judgment was void because it was entered without notice to one of the two defendants in that litigation. We conclude the trial court’s decision cannot be affirmed on that basis or any other and that the 1996 judgment should be reinstated along with the ownership rights it awarded to the Stanleys.

The 1996 Judgment

The 1996 judgment arose out of litigation over the ownership of patent and intellectual property rights to pharmaceutical compounds the Stanleys had developed. The Stanleys owned the rights to the compounds, and in 1985 they formed H.E. Stanley Pharmaceuticals, Inc.(HES) to market them. Tom Stanley was HES’s CEO and chairman of the board. Sometime in 1993, he became acquainted with Gregory Pilant, a potential investor who indicated he had expertise in developing and marketing pharmaceutical products. By December 1993, Tom Stanley had resigned from HES, Pilant had become the new president and CEO, and the Stanleys had agreed to sell the rights to the compounds to HES. When HES failed to pay as promised, the Stanleys sued Pilant and HES for breach of the various agreements they had entered into, fraud, and breach of fiduciary duty.

A recitation of the entire history of the litigation that ensued is unnecessary for the purposes of this decision. The important facts are that after the litigation had been pending for approximately a year, Pilant’s counsel withdrew and Pilant never obtained replacement counsel or appeared in the litigation again. Eventually, the Stanleys moved for a default against HES for discovery violations and other misconduct and for summary judgment against HES and Pilant. The trial court granted the motions and as a result, entered a judgment against HES that awarded the Stanleys damages as well as ownership of the intellectual property. The Stanleys did not seek or obtain a judgment against Pilant, apparently because they had concerns regarding whether he had been properly served with the motions and the notice of hearing.

The Current Litigation

The ownership of the intellectual property is at the heart of this case as well. Greystone, a corporation that, as luck would have it, was founded by Pilant, claims to have acquired ownership of the intellectual property in December 1997, and it also claims that at that time it was unaware of the 1996 judgment. When it “discovered” the 1996 judgment, it filed this declaratory judgment action against the Stanleys asking the court to determine the “rights, duties, and obligations of the parties” regarding the intellectual property. The Stanleys moved to dismiss the action on a number of grounds, and Grey-stone moved for summary judgment arguing, among other things, that the 1996 judgment was void because the Stanleys had not properly served Pilant with the motion for summary judgment and the notice of hearing on that motion, and therefore their actions operated as a “fraud upon the court.” Greystone also sought a determination that it was the “rightful owner” of the intellectual property with rights superior to those of the Stanleys.

At the hearing on the motion for summary judgment, Greystone confined its argument to the contention that the 1996 judgment was the product of “procedural fraud” on the court because “a judgment entered without notice to a party is void.” Greystone argued, and the trial court found that “the failure to give a named party ... Greg Pilant, notice of the Motion for Summary Judgment, the Motion for Default Judgment or the Notices of Hearing thereon ... is tantamount to procedural fraud upon the Court.” It appears to us that the only fraud on the court in this case was the one that convinced the trial court to accept this argument.

The argument that a judgment entered without notice to party is void is correct; it is inapplicable to this case, however, because no judgment was entered against the party who ostensibly had no notice. The trial court focused on the fact that counsel for the Stanleys “possessed no case law to counter the case law cited by the Plaintiff in its Memorandum of Law ... which case law clearly stated that a judgment entered without notice to a party is void,” while overlooking the response of the Stanleys’ counsel that “yes, if a judgment was entered against a party. But the party that the judgment was entered [against] had notice, and that is the corporation ... There is no judgment against Mr. Pilant. If the judgment included Mr. Pilant then, yes, I would totally agree.”

Faced with this seemingly insurmountable factual distinction between the cases on which it had relied and the situation at hand, counsel for Greystone invoked the specter of “shenanigans” if the court were to follow the Stanleys’ argument to “its logical extreme.” The fact remains, however, that although Pilant may not have received notice of the Stanleys’ motions or the notice of hearing, no judgment was entered against him. We conclude that this factual distinction is determinative, and the trial court erred when it concluded otherwise. See Parrimon v. First Nat’l Bank, 923 So.2d 524 (Fla. 2d DCA 2005) (affirming a judgment against a husband but reversing it as to the wife where the plaintiff acknowledged it had not served her properly and had not sought a judgment against her but the trial court nevertheless erroneously entered judgment against her); M.L. Builders, Inc., v. Reserve Developers, LLP, 769 So.2d 1079 (Fla. 4th DCA 2000) (ordering that the judgment against one defendant be vacated for failure to serve him with process but affirming the judgment against the corporation that was properly served); Ram Coating Tech. v. Courtaulds, 625 So.2d 97, 98 (Fla. 1st DCA 1993) (finding “no basis to reverse” a judgment against the president of a corporation where he was properly served even though the corporation was not); Kennedy v. Richmond, 512 So.2d 1129 (Fla. 4th DCA 1987) (reversing a judgment against a partner who had not been served while affirming the judgment as to the other partner).

Accordingly, we reverse the judgment in favor of Greystone and remand this case for further proceedings consistent with this opinion. On remand, the trial court shall, without delay, reinstate nunc pro tunc to August 8, 1996, the judgment in R. Thomas Stanley, John.D. Stanley, and Gene E. Stanley v. Gregory P. Pilant and H.E. Stanley Pharmaceuticals, Inc., Polk County case number GC-G-94-1766.

COOK, MARTHA J., Associate Judge, Concurs.

VILLANTI, J., Concurs in result only.

      . We are cognizant of the fact that both parties’ motions assert multiple grounds upon which their respective motions should be granted. We have not formally considered the merits of the Stanleys' motion to dismiss because they have not argued on appeal that the trial court should have granted that motion. We have, however, considered all issues Greystone raises in its amended motion for summary judgment to determine whether we can affirm the trial court on some alternate ground.

      . We are bothered by the fact that Greystone's trial counsel clearly led the court down the primrose path. In his memorandum at the hearing, counsel quoted cases that factually are materially different from this case. While they stand for the general proposition that a judgment entered against a party without notice is void, the defendants in those cases, unlike Pilant, were the parties against whom a judgment had been entered. Appellate counsel did not represent Greystone in the trial court.

      . See, e.g., Monsour v. Balk, 705 So.2d 968 (Fla. 2d DCA 1998).


text:
    Valerie BOGOS, Appellant/CrossAppellee, v. James E. BOGOS, Appellee/Cross-Appellant.
    No. 2D01-987.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 2006.
    James P. Knox of Knox & Givens, P.A., Tampa; and Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellant/Cross-Appellee.
    James E. Bogos, pro se.

      . Judge Casanueva has been substituted for Judge Scheb, who was on the original panel.

   ORDER ON MOTION FOR REVIEW OF TRIAL COURT’S DENIAL OF APPELLATE ATTORNEYS’ FEES

Pursuant to Florida Rule of Appellate Procedure 9.400(c), Valerie Bogos seeks review of a circuit court order denying her appellate attorneys’ fees in this appeal. In a prior order, issued in conjunction with the opinion in Bogos v. Bogos, 821 So.2d 383 (Fla. 2d DCA 2002), this court remanded Ms. Bogos’ motion for appellate attorneys’ fees to the circuit court to assess whether she was entitled to the fees pursuant to section 61.16, Florida Statutes (2001), and to determine the amount of fees she reasonably incurred. We instructed the circuit court that it should not consider the Rosen factors in making its decision. See Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997).

On remand, the circuit court attempted to address all of the remaining attorneys’ fees issues simultaneously — those remanded in the opinion and those remanded in the order on the former wife’s motion for appellate attorneys’ fees. Unfortunately this reasonable plan led to some considerable confusion. The former wife maintained that all of the issues presented on remand could be decided based upon the evidence in the existing record. Neither party asserted that their relative financial positions had changed since the earlier hearing. The circuit court indicated that in determining the former wife’s entitlement to appellate attorneys’ fees, it would rely upon a prior determination that the former husband earned, and had traditionally earned, four times the amount of the former wife. Thereafter, however, the circuit court issued an order denying the former wife any appellate attorneys’ fees because she had not presented new evidence as to her financial need. Under the circumstances, if the circuit court decided that it required new evidence of financial need, due process required that the former wife be given an opportunity to present that evidence. Otherwise, the evidence already in the record supported an award of some or all of the appellate attorneys’ fees the former wife incurred. Accordingly, we reverse the order.

On remand, in the absence of a stipulation otherwise, the former wife should be prepared to present evidence regarding the respective financial positions of the parties to establish her entitlement to fees pursuant to section 61.16, as well as evidence of the fees she reasonably incurred in this appeal. We note again that the circuit court should not consider the factors set forth in Rosen.

ALTENBERND, CASANUEVA, and STRINGER, JJ., Concur.


text:
    Tony C. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2683.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Tony C. Martin, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the order summarily denying the appellant’s motion for postconviction relief, but not for the reasons specified by the state’s response below. Appellant’s motion was untimely filed pursuant to rule 3.850(b), as his sentence did not exceed the limits provided by law for a habitual violent felony offender; and any defect in the notice of intent to habitualize is a procedural error that does not result in an illegal sentence cognizable in a rule 3.800(a) motion, see Epps v. State, 912 So.2d 644 (Fla. 4th DCA 2005). A 3.800(a) motion is the only means by which he could challenge his sentence so many years after his conviction and sentence became final.

SHAHOOD, GROSS and MAY, JJ., concur.


author: LaROSE, Judge.

text:
    Patricia A. FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4758.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 2006.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Patricia A. Floyd, who pleaded guilty in three drug-related cases below, appeals her judgment and sentence, challenging the trial court’s denial of her motion to correct sentencing error. See Fla. R.Crim. P. 3.800(b)(2). We write to address two cost items challenged by Ms. Floyd.

Ms. Floyd claims that the trial court erred in imposing a $200 public defender fee without citing a proper statutory authority for imposition of the fee. See Sutton v. State, 635 So.2d 1032, 1033 (Fla. 2d DCA 1994). Contrary to Ms. Floyd’s assertion, the trial court correctly found that the “statutory authority for the imposition of this fee is clearly shown on the charges, costs, and fees portion of the written sentence.” Although the written sentence does not cite a specific statutory provision, “public defender fee” is a sufficient description to enable us to determine the basis for this fee. See Ayoub v. State, 901 So.2d 311, 314 (Fla. 2d DCA 2005) (holding that identifying cost by name is sufficient description to substitute for statutory citation).

Ms. Floyd also asserts that the public defender fee was not included in the written sentence. At sentencing, the trial court orally pronounced the $200 fee and included it in the written sentence. In ruling on Ms. Floyd’s rule 3.800(b)(2) motion, the trial court concluded that the oral pronouncement conflicted with the written sentence. Presumably finding that the oral pronouncement, imposing the fee, took precedence over the written sentence, the trial court denied the rule 3.800(b)(2) motion on this point. See Driver v. State, 710 So.2d 652, 653 (Fla. 2d DCA 1998). The result is correct. The record suggests that the trial court, in addressing the rule 3.800(b)(2) motion, may have overlooked the public defender fee in the costs and fees section on the written judgment and sentence for one of the three cases. The oral and written sentences, in fact, conformed. Thus, we affirm as to this fee.

Ms. Floyd challenged a $100 FDLE cost, imposed pursuant to section 938.25, Florida Statutes (2004). She argued that the trial court did not make the statutorily required inquiry into her ability to pay. Concluding that the $100 FDLE cost was never imposed, the trial court denied this rule 3.800(b)(2) claim. The record, however, reveals that the trial court imposed this cost in one of the three cases. Accordingly, because the trial court did not make a finding of ability to pay, we reverse and direct the trial court to strike this cost unless, on remand, it makes the necessary findings. See § 938.25; Glover v. State, 921 So.2d 846, 847 (Fla. 2d DCA 2006).

In all other respects, we affirm.

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

STRINGER, J., and HAYES, HUGH D., Associate Judge, Concur.