author: COBB, Judge.

text:
    Richard Maurice INGRAM v. STATE of Alabama.
    CR-05-0030.
    Court of Criminal Appeals of Alabama.
    May 26, 2006.

      Pete J. Valias, Mobile, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   COBB, Judge.

The appellant, Richard Maurice Ingrain, appeals the circuit court’s summary denial of his Rule 32, AIa.R.Crim.P., petition for postconviction relief, in which he attacked his March 17, 2003, conviction for murder and his resulting sentence of life imprisonment as a habitual felony offender. This Court affirmed Ingram’s conviction and sentence on direct appeal in an unpublished memorandum issued on May 21, 2004. Ingram v. State (CR-02-1415), 919 So.2d 1235 (Ala.Crim.App.2004) (table). The Alabama Supreme Court denied cer-tiorari review, and this Court issued a certificate of judgment on September 20, 2004.

Ingram filed the present Rule 32 petition on April 22, 2005, claiming:

(1) That his counsel was ineffective at trial and on appeal for a number of reasons;
(2) That he was entitled to a new trial because of alleged prosecutorial misconduct;
(3) That he was entitled to a new trial based on newly discovered evidence;
(4) That his conviction and sentence should be vacated and a judgment of acquittal entered because, he claimed, several plausible theories existed that were inconsistent with his guilt; and
(5) That the trial court should reconsider its decision to admit, under the excited-utterance exception to the hearsay rule, evidence indicating that the victim had identified Ingram as the shooter shortly after the shooting.

After receiving a response from the State, the circuit court summarily denied the petition in a written order issued on July 29, 2005. This appeal followed.

Ingram argues on appeal that the circuit court erred in summarily denying his petition and, further, that the circuit court erred in not providing specific findings of facts as to Ingram’s claims.

I.

With regard to claim (2) set out above, Ingram contends that the prosecutor in closing remarks improperly referred to the victim’s statements naming Ingram as the shooter as a “dying declaration.” According to Ingram, the trial court had ruled that the statements were not admissible under the dying-declaration exception to the prohibition against hearsay evidence but had instead allowed the testimony under a separate exception to the hearsay rule. This claim is barred by Rules 32.2(3) and (5), because it could have been, but was not, raised at trial and on appeal. Moreover, we note that although the trial court ruled that the statements were not admissible under the dying-declaration exception, the trial court ruled that the evidence was admissible under the excited-utterance exception, and, therefore, the statements themselves were in evidence at the time the prosecutor referenced them during closing remarks. Therefore, summary denial as to this claim was proper.

II.

With regard to claim (3) set out above, Ingram alleges as newly discovered evidence that he has discovered two witnesses whose testimony he contends would prove his innocence.

Newly discovered evidence is a ground for seeking postconviction relief from a conviction or sentence. To gain postconviction relief on newly discovered evidence, a petitioner must show:

“(1) The facts relied upon were not known by the petitioner or the petitioner’s counsel at the time of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
“(2) The facts are not merely cumulative to other facts that were known;
“(3) The facts do not merely amount to impeachment evidence;
“(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
“(5) The facts establish that the petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that the petitioner received.”

Rule 32.1(e), Ala.R.Crim.P.

Rule 32.3, Ala.R.Crim.P., states that “[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.” Rule 32.6(b), Ala.R.Crim.P., states that “[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.”

“An evidentiary hearing on a [Rule 32] petition is required only if the petition is ‘meritorious on its face.’ Ex parte Boatwright, 471 So.2d 1257 (Ala.1985). A petition is ‘meritorious on its face’ only if it contains a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the facts relied upon (as opposed to a general statement concerning the nature and effect of those facts) sufficient to show that the petitioner is entitled to relief if those facts are true. Ex parte Boatwright, supra; Ex parte Clisby, 501 So.2d 483 (Ala.1986).”

Moore v. State, 502 So.2d 819, 820 (Ala.1986).

A.

Ingram contends that he had been shot by the victim and two members of the victim’s family a year before the victim’s death. Ingram claims that he recently discovered a witness who would testify that he saw the victim and two members of the victim’s family shoot Ingram five times in the victim’s front yard; according to Ingram, this testimony would provide the motive for the victim and the victim’s sister to attempt to frame Ingram by having the victim’s sister create what was supposed to have been a non-life-threatening injury to the victim by shooting the victim in the leg so he could blame Ingram.

Ingram’s allegations do not meet the specificity requirements of Rule 32.6(b), Ala.R.Crim.P., and the pleading requirements of Rule 32.3, Ala.R.Crim.P., to establish that this evidence constituted newly discovered evidence as set forth in Rule 32.1(e). Therefore, the circuit court properly denied this claim without an evidentia-ry hearing.

B.

Ingram further averred that he met a man in prison who claimed to have been with the victim on the night the victim died; according to Ingram, the man told him that he saw the shooter and that Ingram was not the shooter. However, as the State correctly notes, this claim has previously been litigated. Ingram presented this claim in his motion for a new trial. Further, on direct appeal, Ingram challenged the denial of that motion for a new trial based on the newly discovered witness. Thus, this witness does not fall within the requirements of Rule 32.1(e)(1), i.e., the evidence was known to the defense in time to file a motion for a new trial; in fact, the defense did file such a motion. Further, because this claim was presented at trial and on appeal, it is barred by Rules 32.2(a)(2) and (4). Therefore, summary denial of this claim was proper.

III.

With regard to claim (4) set out above, Ingram presents several different versions of possible events leading to the victim’s death. Ingram essentially challenges the credibility of the State’s witnesses and the veracity of their testimony and instead substitutes his theory of the events that took place on the evening of the murder. Ingram further avers that the shooting may have been orchestrated by the victim and carried out by the victim’s sister as a part of a deliberate and elaborate scheme to frame Ingram in retaliation for earlier incidents between the parties. Ingram alleges that the victim had shot him a year before his death and that the victim was about to begin serving a two-year prison term for shooting Ingram—Ingram opines that the victim had his sister shoot him in the leg intending to cause a nonfatal wound so that he could claim Ingram shot him. Finally, Ingram claims that the victim’s death was unwittingly caused by a drug overdose rather than by the gunshot wound. While Ingram has put together a lengthy rendition of his assorted theories, his claim is nothing more than an attempt to relitigate the evidence. This hodgepodge of contentions is barred by provisions of Rule 32.2(a)— the arguments Ingram advanced at trial regarding his innocence and alleged conflicts in the evidence are barred by Rule 32.2(a)(2) and the additional contentions Ingram advances for the first time in his Rule 32 petition are barred by Rules 32.2(a)(3) and (5), because these claims could have been, but were not, raised at trial or on appeal. For these reasons, summary denial of this claim was proper.

IV.

With regard to claim (5) set out above, i.e., Ingram’s request that the trial court reconsider its ruling allowing the prosecutor to introduce the victim’s statements—i.e., that the victim accused Ingram of being the shooter—under the excited-utterance exception to the hearsay rule, we note simply that the propriety of that ruling was raised and addressed at trial, in a motion for a new trial, and on direct appeal. Thus, this claim is barred by Rules 32.2(a)(3) and (5). Therefore, summary denial of this claim was proper.

V.

Ingram avers that the trial court erred in not making specific findings of fact in its order denying his petition. We note that “ ‘Rule 32.7 does not require the trial court to make specific findings of fact upon a summary dismissal.” ’ Duren v. State, 813 So.2d 928, 930 (Ala.Crim.App.2000), quoting Fincher v. State, 724 So.2d 87, 89 (Ala.Crim.App.1998). Because summary denial was proper as to claims (2), (3), (4), and (5), Ingram is not entitled to any relief as to those claims.

VI.

We now turn to Ingram’s claims that he was denied the effective assistance of counsel at trial and on appeal and that the circuit court erred in failing to make specific findings of fact regarding those allegations.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Furthermore, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 689, 104 S.Ct. 2052.

In Boyd v. State, 913 So.2d 1113 (Ala.Crim.App.2003), this Court noted:

“ ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitles a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala.R.Crim.P., to present evidence proving those alleged facts.”

913 So.2d at 1125. As this Court explained in Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001):

“[A]t the pleading stage of Rule 32 proceedings, a Rule 32 petitioner does not have the burden of proving his claims by a preponderance of the evidence. Rather, at the pleading stage, a petitioner must provide only ‘a clear and specific statement of the grounds upon which relief is sought.’ Rule 32.6(b), Ala. R.Crim.P. Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala.R.Crim.P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.”

831 So.2d at 644.

The circuit court’s order summarily denying Ingram’s petition reads, in pertinent part as follows:

“Petitioner has not met the test specifically set out in Strickland v. Washington, 466 U.S. 668, 694 (1984) regarding claims of ineffective assistance of counsel of both his counsel at trial and appeal. Under Strickland, it is not enough to show that trial counsel’s errors ‘had some conceivable effect on the outcome of the proceeding,’ rather the defendant ‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Strickland, 466 U.S. at 693-94. Defendant has not met that burden in the Petition.”

(C. 137-38.)

In his petition, Ingram alleged that counsel was ineffective at trial for a litany of reasons. Ingram attached to his petition approximately 65 pages of documents, including excerpts from the trial transcript, pleadings filed by counsel, assorted exhibits from trial, and a photocopy of what is purported to be the front and back of his trial counsel’s business card bearing a handwritten note purportedly written by trial counsel stating “If $8,000 is not paid by Fri. Feb 28 the Judge said I can withdraw and you can get a new lawyer. That’s paid in full.” (C. 17.) Ingram further attached to his petition a 41-page brief in which he, albeit in a sometimes confusing and disjointed manner, discussed in some detail the specific instances in which he contended his counsel was ineffective and how those alleged deficiencies prejudiced his defense. Generally, those allegations included that his counsel was ineffective for not objecting to alleged improprieties in the prosecutor’s closing remarks, not subpoenaing evidence or witnesses supporting his alibi, not investigating his theory that the bullet recovered from the victim’s leg may have been fired from the same gun the victim’s sister had allegedly used to shoot Ingram a year earlier, not fully investigating the victim’s cause of death, and not pursuing his alternative theories of the events. Ingram also argued that his counsel was ineffective for intentionally refraining from pursuing certain objections, motions, and defenses because of disputes over the payment of his attorney fee. Ingram further averred that his counsel was ineffective for not properly pursuing these substantive claims in a motion for a new trial or on appeal.

The State concedes that Ingram met his burden of pleading with regard to his ineffective-assistance-of-counsel claims and, thus, that the case is due to be remanded for the circuit court to make specific findings of fact as to Ingram’s claims that his counsel was ineffective. We agree.

Based on the foregoing, we remand this case for the circuit court to address the merits of Ingram’s ineffective-assistance-of-counsel claims. On remand, the circuit court may conduct an evidentiary hearing or take such additional evidence as it deems necessary to make its determination and specific findings of fact. See Rule 32.9(a), Ala.R.Crim.P. Due return to remand shall be filed with this Court within 56 days of the date of this opinion. The return to remand shall include the circuit court’s written findings of fact; a transcript of the remand proceedings, if any are conducted; and any other evidence submitted or relied on by the circuit court in making its determination.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and SHAW and WISE, JJ., concur.

BASCHAB, J., concurs in the result.

       Note from the reporter of decisions: On October 27, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On December 15, 2006, that court denied rehearing, without opinion.


source: Caselaw Access Project

author: WISE, Judge. SHAW, Judge,

license: Public Domain

text:
    Carrius Donte CULVER v. STATE of Alabama.
    CR-05-0512.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.

      Carrius Donte Culver, pro se.
    Troy King, atty. gen., and Madeline Hin-son Lewis, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Carrius Donte Culver, appeals from the trial court’s denial of his petition for postconviction relief, filed pursuant to Rule 32, Ala. R.Crim. P., in which he challenged his March 2005 guilty-plea convictions for first-degree burglary, three counts of second-degree kidnapping, attempted murder, intimidating a witness, and the resulting sentences: for his burglary conviction, Culver was sentenced to a term of life imprisonment; for his attempted-murder conviction, Culver was sentenced to a term of life imprisonment; for his three kidnapping convictions, Culver was sentenced to three terms of 20 years’ imprisonment; and for his conviction for intimidation of a witness, Culver was sentenced to a term of 10 years’ imprisonment. All of his sentences were to run concurrently. No direct appeal was taken.

On August 3, 2005, Culver filed the instant Rule 32 petition, in which he argued, as best we can discern, (1) that the trial court lacked jurisdiction to accept his guilty pleas because, he said, he was not informed of, nor did his indictments for burglary and attempted murder allege, all of the essential elements of each offense; (2) that his convictions for burglary and attempted murder were a violation of his constitutional right to be free from double jeopardy; and (3) that he was denied effective assistance of trial counsel because, he said, counsel (a) failed to investigate the circumstances of the case, (b) advised him to plead guilty even though the indictments for burglary and attempted murder were defective, (c) failed to inform him of the nature and essential elements of the offenses, and (d) failed to communicate with him. After receiving a response and a motion to dismiss from the State, the circuit court appointed counsel for Culver and held a hearing on the State’s motion to dismiss. In a detailed written order, the trial court denied Culver’s petition.

On appeal, Culver appears to rear-gue the claims presented by his petition and further contends that the circuit court failed to enter specific findings as to each claim.

Culver first claims that the trial court lacked jurisdiction to accept his guilty pleas for burglary and attempted murder because, he says, he was not informed of, and the indictments failed to allege, all the essential elements of each offense. Specifically, Culver maintains that his indictment for burglary failed to allege that the victim was not a participant in the crime and that his indictment for attempted murder failed to allege that the stabbing of the victim caused “serious physical injury” or that the murder attempt actually failed.

The circuit court’s order denying Culver’s petition stated, in pertinent part:

“The Court is of the opinion that the lack of wording complained of in the Burglary 1st indictment would be sur-plusage. The indictment affirmatively charges defendant with unlawfully entering an occupied dwelling home with intent to commit an assault on Zerrick Johnson. It doesn’t describe Johnson as a person ‘who was not a participant in the crime’ but the recitations of facts during the pleas of guilt certainly reflected that he was an innocent victim and not a participant. Further the part that the assault with intent to murder doesn’t aver that the attempt failed is a bit frivolous. The use of the word attempt infers that it was an incomplete act in itself. Further, had it not failed, the defendant would clearly have been charged with murder, not attempted murder.”

(C.R. 6-7.) The record supports the circuit court’s finding, and we adopt its finding as part of this opinion. Moreover, in Ex parte Seymour, 946 So.2d 536 (Ala.2006), the Alabama Supreme Court held that the Alabama Constitution and the Code of Alabama 1975, not the indictment, are the source of a trial court’s subject-matter jurisdiction. Therefore, because the validity of an indictment does not affect a circuit court’s subject-matter jurisdiction, a challenge to an indictment is not a jurisdictional claim and is therefore subject to the procedural bars in Rule 32.2. Culver’s challenge to his indictments are barred by Rule 32.2(a)(3) and (a)(5), because they could have been, but were not, raised at trial and on appeal.

Culver next contends that he was denied effective assistance of counsel. Culver seems to couch his ineffective-assistance-of-counsel claim with his claim that his guilty plea was not made knowingly, intelligently, or voluntarily. He claims that trial counsel did not investigate his case, did not communicate with him enough, and failed to make motions to dismiss his indictments, all resulting in prejudice to Culver. Culver’s entire petition essentially contained only naked allegations that his constitutional rights had been violated. In particular, his claims with regard to the alleged ineffective assistance of his trial counsel were unsupported by specific facts and failed to satisfy either the burden of proof requirements of Rule 32.3 or the specificity requirements of Rule 32.6(b). Here, as was the case in Hope v. State, 521 So.2d 1383 (Ala.Crim.App.1988):

“This ‘grocery list’ of counsel’s alleged failures is totally useless because it represents only legal conclusions unsupported by specific facts. Moore v. State, 502 So.2d 819 (Ala.1986). ‘A petition is “meritorious on its face” only if it contains a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the facts relied upon (as opposed to a general statement concerning the nature and effect of those facts) sufficient to show that the petitioner is entitled to relief if those facts are true.’ Moore, 502 So.2d at 820.”

Hope v. State, 521 So.2d at 1389.

The circuit court, in its written order denying Culver’s Rule 32 petition, stated:

“The defendant contends that his counsel was ineffective and tries to support this complaint in generalized terms. His court-appointed attorney countered defendant’s contentions with his own version of his efforts to represent defendant. Defendant admits that he told the court that he was satisfied with Mr. Lamere’s representation of him when he entered his pleas of guilty. All of the things complained of could have been raised on appeal by defendant if he had chosen to do so. In the opinion of the court, none of the complaints have substance.”

(C.R. 7.)

Here, the trial court, which had personal knowledge of the facts, heard testimony from trial counsel that refuted Culver’s claims. The evidence presented did not show that trial counsel’s performance was deficient, nor did it show that Culver’s defense had been prejudiced. Culver failed to meet the standards outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the trial court did not commit reversible error when it denied any relief as to his claim.

Finally, Culver maintains that his constitutional rights against double jeopardy were violated when he was convicted of both burglary and attempted murder for what he says were the same actions. While we express no opinion as to the merits of Culver’s claim, it is clear that the circuit court failed to specifically address this claim in its order denying Culver’s Rule 32 petition. Rule 32.9(d), Ala. R.Crim. P., requires that the circuit court “make specific findings of fact relating to each material issue of fact presented.” Accordingly, we find it necessary to remand this case to the circuit court for that court to enter a new order addressing the merits of Culver’s double-jeopardy claim. On remand, the circuit court may require the State to respond specifically to Cul-ver’s claim, and, if necessary, it may conduct a new evidentiary hearing or accept evidence in the form of affidavits, 'written interrogatories, or depositions. In making factual determinations, the circuit court may take judicial notice of the record. Due return shall be filed with this Court no later than 56 days from the date of this opinion. The return to remand shall include the circuit court’s written findings, the State’s response if one is filed, a transcript of the proceedings conducted on remand if any are conducted and any other evidence accepted by the court.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB, J., concur. SHAW, J., concurs in part and dissents in part, with opinion, which COBB, J., joins.

SHAW, Judge,

concurring in part and dissenting in part.

I concur with all of the main opinion except that part remanding this case to the circuit court for factual findings on the double-jeopardy question. Attempted murder and burglary are two distinct crimes, each requiring proof that the other does not. See, e.g., Arnold v. State, 668 So.2d 111 (Ala.Crim.App.1995). The trial court was correct in denying Rule 32 relief; therefore, I would affirm the judgment.

COBB, J., concurs.

      . On appeal, Culver raises additional claims regarding his indictment; however, "[a]n appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.” Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997). Thus, any new claims are not properly before this Court.

      . We note that Culver has failed to provide this Court with a copy of any of the indictments. It is the appellant’s duty to provide this Court with a complete record on appeal. McCray v. State, 629 So.2d 729, 733 (Ala.Crim.App.1993); Knight v. State, 621 So.2d 394 (Ala.Crim.App.1993). "'This court cannot predicate error on matters not shown by the record, nor can we presume error from a silent record.’ " Stegall v. State, 628 So.2d 1006, 1009 (Ala.Crim.App.1993)(quoting Owens v. State, 597 So.2d 734, 736 (Ala.Crim.App.1992)); Smelcher v. State, 520 So.2d 229 (Ala.Crim.App.1987); Abbott v. State, 494 So.2d 789 (Ala.Crim.App.1986).

       Note from the reporter of decisions: On October 20, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On November 17, 2006, that court denied rehearing, without opinion. On January 5, 2007, the Supreme Court denied certiorari review, without opinion (1060394).


author: COBB, Judge. BASCHAB, Judge,

text:
    James Edward WALLACE v. STATE.
    CR-05-0351.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.

      James E. Wallace, pro se.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   On Rehearing Ex Mero Motu

COBB, Judge.

The unpublished memorandum issued on April 21, 2006, is withdrawn and the following opinion is substituted therefor.

James Edward Wallace appeals the circuit court’s summary denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief, in which he attacked his August 2, 1999, guilty-plea convictions for kidnapping in the second degree and sexual abuse in the first degree. Wallace was sentenced on November 19, 1999, to 25 years’ imprisonment for each of his convictions. He did not appeal.

Wallace filed the present petition on September 26, 2005. In his petition, Wallace argued, as best we can determine:

1. That prior Rule 32 petitions filed by Wallace were improperly adjudicated for a number of reasons;
2. That his guilty pleas were involuntarily and unknowingly entered based on the alleged failure by his trial counsel and the trial court to advise him of a number of rights;
3. That his sentences are illegal because, he claimed, the State failed to give sufficient notice that it was seeking to have him sentenced pursuant to the Habitual Felony Offender Act (“HFOA”) and, further, that the trial court improperly used a prior conviction in case no. CC-83-31, a prior conviction for receiving stolen property in the second degree in Bibb County, to enhance his sentence because this case represented a nolo contendere conviction, and because he received a full pardon for this conviction; and
4. That the indictment in one of his prior convictions had been impermissibly amended, resulting in his pleading guilty to an offense that was not contemplated in that indictment.

Without requiring a response from the State, the circuit court summarily denied Wallace’s petition. This appeal followed.

I.

With regard to claim one, i.e., Wallace’s challenges to the propriety of the adjudication of his prior Rule 32 petitions, we note simply that Rule 32.4 provides that Rule 32 petitions are the procedure by which a petitioner seeks relief from his conviction or sentence. Depending on the circumstances, the proper avenue in which to challenge alleged errors in the adjudication of the prior Rule 32 petitions is either to file a mandamus petition or to appeal from the dismissal of those petitions rather than to file a new petition, i.e., the present petition.

II.

Claim two, as set out above, is a non-jurisdictional claim that is barred by the limitations period in Rule 32.2(c), Ala.R.Crim. P., by the prohibition against successive petitions in Rule 32.2(d), and by assorted provisions of Rule 32.2(a). See, e.g., Catchings v. State, 684 So.2d 168, 169 (Ala.Crim.App.1995)(a challenge to the vol-untariness of a guilty plea is not jurisdictional and, although it can be raised for the first time in a Rule 32 petition, it is subject to the limitations period in Rule 32.2(c), Ala.R.Crim. P.); Fincher v. State, 837 So.2d 876 (Ala.Crim.App.2002)(a challenge to the voluntariness of a guilty plea is not jurisdictional); and Cogman v. State, 852 So.2d 191 (Ala.Crim.App.2002)(an ineffective-assistance-of-counsel claim is not jurisdictional).

III.

Wallace claims that his sentences are illegal because, he claims: 1) the State failed to give sufficient notice of its intent to enhance his sentence pursuant to the HFOA; 2) the trial court improperly used the conviction in case no. CC-83-31, in which Wallace had entered a plea of nolo contendere to receiving stolen property in the second degree in Bibb County, to enhance his sentence under the HFOA; and 3) the trial court improperly used the conviction in case no. CC-83-31, to enhance his sentence under the HFOA because he received a full pardon for that conviction.

A.

A challenge to insufficient notice of the State’s intent to seek application of the HFOA is subject to the procedural bars in Rule 32.2, Ala. R.Crim. P. “According to Nichols v. State, 629 So.2d 51 (Ala.Crim. App.1993), the notice requirement for sentence enhancement is procedural rather than jurisdictional and can be waived by the failure to object.” Rogers v. State, 728 So.2d 690, 691 (Ala.Crim.App.1998).

Because this claim is not jurisdictional, it is precluded by Rule 32.2(b), Ala. R.Crim. P., because there has been no assertion establishing “good cause” for failing to raise the claim in Wallace’s first petition; by Rule 32.2(c), Ala. R.Crim. P., because Wallace’s petition was filed outside the limitations period; and by Rules 32.2(a)(3) and (5), Ala. R.Crim. P., because the claim could have been, but was not, raised at trial and on appeal.

B.

Wallace claims that his sentence is illegal because it was enhanced pursuant to the HFOA by using a nolo contendere plea (case no. CC-83-31) as a conviction. Rule 14.2(c), Ala. R.Crim. P., provides:

“A defendant may plead:
“(1) Guilty,
“(2) Not guilty,
“(3) Not guilty by reason of mental disease or defect, or
“(4) Not guilty and not guilty by reason of mental disease or defect.”

Alabama law does not provide for the entry of a nolo contendere plea (also known as a “no contest” plea). See May v. Lingo, 277 Ala. 92, 95, 167 So.2d 267, 269 (1964) (“the appellate courts of this state have never recognized the plea of nolo contendere as a part of our criminal procedure”).

Thus, this claim is without merit.

C.

Wallace claims that his sentence is illegal because it was enhanced by use of a prior conviction, case no. CC-83-31, for which he says he received a full pardon — a pardon with restoration of civil and political rights — before he was convicted of and sentenced for the instant crime.

The circuit court summarily ruled that this claim was due to be denied because “all the grounds raised in this petition could have been raised in an earlier petition” and Wallace cited no “reasons why he could not have raised those grounds in the earlier petitions.” (CR. 25-26.) See Rule 32.2(b), Ala. R.Crim. P., which precludes review of a successive petition.

However, in Ex parte Casey, 852 So.2d 175 (Ala.2002), the Alabama Supreme Court held that a full pardon precluded the use of the pardoned convictions to enhance the petitioner’s sentence under the HFOA. “[T]he pardon blotted out of existence [the appellant’s] guilt with respect to the pardoned convictions, making him, in the eye of the law, a new and an innocent man. Therefore, the pardoned convictions cannot be used to enhance his sentence under the Habitual Felony Offender Act.” Ex parte Casey, 852 So.2d at 181; see also Henderson v. State, 895 So.2d 364, 365 (Ala.Crim.App.2004). Thus, the use of a prior conviction as to which the defendant has been pardoned to enhance a sentence pursuant to the HFOA, would increase the sentence beyond the maximum allowed by law and thus render it illegal.

A sentence that exceeds the maximum allowed by law is an illegal sentence affecting the trial court’s jurisdiction. A challenge to an illegal sentence is “not precluded by the limitations period or by the rule against successive petitions.” Jones v. State, 724 So.2d 75, 76 (Ala.Crim.App.1998). “[A]n allegedly illegal sentence may be challenged at any time, because if the sentence is illegal, the sentence exceeds the jurisdiction of the trial court and is void.” Rogers v. State, 728 So.2d at 691. Thus, this claim is not proeedurally barred.

Wallace’s assertion that he received a full pardon in case no. CC-83-31 was not disputed by the State. When the State does not refute a petitioner’s allegation, the unrefuted statements must be taken as true. See Chaverst v. State, 517 So.2d 643, 644 (Ala.Crim.App.1987). However, the State argues on appeal that Wallace is not entitled to relief on this claim because “Wallace has submitted no evidence to support his assertion that he was pardoned for the offense in the 1985 or 1988. Thus, there were no facts supporting his claim for relief....” (State’s brief at p. 11.)

Wallace’s petition was summarily dismissed following the pleading stage of the proceedings. There was no burden on Wallace to present evidence proving his claim at the pleading stage. His burden was to plead sufficient facts, that, if true, would entitle him to relief.

“ ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving those alleged facts.”

Boyd v. State, 913 So.2d 1113, 1125 (Ala.Crim.App.2003)(some emphasis in Boyd; some emphasis added).

A simple example of insufficient pleading is an assertion that the petitioner received ineffective assistance of counsel. Ineffective assistance of counsel would entitle a petitioner to relief. However, stating in the pleading “I received ineffective assistance of counsel” is merely the pleading of the petitioner’s conclusion that counsel was ineffective. It places nothing before the circuit court to suggest that counsel was ineffective. It is incumbent that the petitioner to include the facts underlying the alleged conclusion that counsel was ineffective. The petitioner must plead exactly what counsel did or failed to do that constituted deficient performance, and the petitioner must plead how the alleged deficiencies prejudiced the outcome of the trial. The State may dispute the allegations in a response to the petition. However, once the circuit court determines that the petitioner’s petition contains sufficient facts, that, if true, would entitle the petitioner to relief, the petitioner is then granted the opportunity to prove the facts contained in the petition at a hearing or as otherwise provided in Rule 32.9(a), Ala. R.Crim. P.

Here, unlike a claim such as ineffective assistance of counsel, which has broad, almost unlimited, possibilities as to its commission and effect on the trial, Wallace claimed that a pardoned prior conviction was used to enhance his sentence. Wallace either received a pardon on the prior conviction or he did not. This is a simple, straightforward allegation. There are no facts that Wallace could plead underlying the claim other than to name the conviction that was pardoned and to state when the conviction was pardoned. Essentially, Wallace needed to plead enough to allow the State to investigate and respond. Here, Wallace pleaded under oath that on May 2, 1983, he was convicted in Bibb County in case no. CC-83-31 of receiving stolen property in the second degree. He pleaded that he received “a full and unconditional pardon for prior conviction CC-83-31, in which the pardon was granted some time between 1985 and 1988” and that this pardoned conviction was used to enhance his sentence in the instant case. (CR. 19.) This assertion was not disputed by the State. Therefore, this is an undisputed allegation of fact, which, if true, entitled Wallace to relief. Having sufficiently pleaded the claim, Wallace was entitled to an opportunity to prove his allegation.

Therefore, because Wallace presented a sufficiently pleaded, unanswered, illegal-sentence claim, we remand this cause to the circuit court with instructions for the circuit court to give the State an opportunity to respond to Wallace’s claim and to conduct either an evidentiary hearing or to “take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing,” as provided in Rule 32.9(a), Ala. R. Crim. P. The circuit court is directed to make specific, written findings of fact, see Rule 32.9(d), Ala. R. Crim. P., regarding Wallace’s claim that he received a pardon in case no. CC-83-31 receiving stolen property in the second degree and his claim that the conviction in case no. CC-83-31 was thus improperly used to enhance his sentence.

If the circuit court determines that Wallace received a pardon in case no. CC-83-31 and that the conviction in case no. CC-83-31 was used to enhance his sentence, it shall resentence Wallace accordingly.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 70 days after the release of this opinion. The return to remand shall include the circuit court’s written findings of fact and, if applicable, the State’s response and/or a transcript of the evidentiary hearing or any evidence obtained pursuant to Rule 32.9, Ala. R.Crim. P.

rv.

With regard to claim four, as set out above, we note that “[t]he proper procedure for challenging the validity of prior felony convictions used for enhancing a sentence under the Habitual Felony Offender Act is to file a Rule 32, [Ala.] R.Crim. P., petition in the court of conviction for the conviction being challenged.” Sturdivant v. State, 643 So.2d 1013, 1014 (Ala.Crim.App.1993). See also McHarris v. State, 623 So.2d 400 (Ala.Crim.App.1993); and Crum v. State, 611 So.2d 495 (Ala.Crim.App.1992). Because the proper vehicle for Wallace to challenge the validity of the prior drug conviction used to enhance his sentence under the HFOA would be through a separate Rule 32 petition challenging that conviction, not the present petition challenging his 1999 guilty-plea convictions for second-degree kidnapping and first-degree sexual abuse, summary denial of this claim of the petition was proper.

V.

Wallace further alleges on appeal that the trial judge should have recused himself from the Rule 32 proceedings. However, although he referenced in his petition the judge’s prior involvement in his legal proceedings, those facts did not constitute a claim. Although he now attempts to categorize those factors as a separate claim on appeal, it is well settled that “[a]n appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.” Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997). See also Bearden v. State, 825 So.2d 868, 872 (Ala.Crim.App.2001)(“Although Bearden attempts to include more specific facts regarding his claims of ineffective assistance of counsel in his brief to this Court, those allegations are not properly before this Court for review because Bearden did not include them in his original petition before the circuit court.”).

VI.

Finally, Wallace claims that the circuit court erred in denying his petition before the State responded to his petition. To the extent that this constitutes a separate claim, we note simply that it is well settled that a circuit court may summarily deny a Rule 32 petition under Rule 32.7(d), as the circuit court did here, before the State files a response. See, e.g., Bishop v. State, 608 So.2d 345, 347-48 (Ala.l992)(holding that where a simple reading of a petition for postconviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court may summarily dismiss that petition without requiring a response from the district attorney).

Thus, except for Wallace’s illegal sentence claim based on the use of case no. CC-83-31 for enhancement under the HFOA, all of Wallace’s claims were either barred, insufficiently pleaded, or without merit. Therefore, summary denial as to those claims was proper.

Based on the foregoing, the judgment of the circuit court is affirmed, but remanded for the circuit court to determine whether Wallace was pardoned in case no. CC-83-31 and to take any necessary action.

ON REHEARING EX MERO MOTU: UNPUBLISHED MEMORANDUM OF APRIL 21, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED; REMANDED WITH DIRECTIONS.

MeMILLAN, PH., and SHAW and WISE, JJ., concur.

BASCHAB, J., concurs in part and dissents in part, with opinion.

BASCHAB, Judge,

concurring in part and dissenting in part.

I concur with the majority opinion in all respects except for that portion that remands this case for findings regarding the appellant’s claim that he received a pardon in case number CC-83-31. In his petition, the appellant asserted that he “received a full and unconditional pardon for prior conviction CC-83-31, in which the pardon was granted some time between 1985 and 1988.” (C.R. 19.) I cannot agree that the appellant’s bare allegation that he received a pardon “some time between 1985 and 1988” is sufficient to satisfy his burden of pleading pursuant to Rules 32.3 and 32.6(b), Ala. R.Crim. P. Accordingly, I respectfully dissent as to the part of the majority opinion that remands for the circuit court to address that claim.

      . The petition was summarily dismissed before the State responded.

      . This case is distinguishable from Fincher v. State, 837 So.2d 876 (Ala.Crim.App.2002). Fincher raised his claim regarding an illegal sentence for the first time on appeal. However, there was nothing in the record supporting the claim, and, thus, there was no reason to presume that a jurisdictional defect occurred regarding the imposition of the sentence. Unlike Fincher, Wallace did raise and did sufficiently plead his claim in his Rule 32 petition. However, although the better practice would be for the petitioner to attach a copy of the certificate of pardon to the petition, it is not a fatal omission in the pleading phase.

      . In order to successfully argue an ineffective assistance of counsel claim, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires that the appellant prove that counsel’s performance was deficient and that the deficiency prejudiced the appellant.

       Note from the reporter of decisions: On December 15, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: PER CURIAM.

text:
    FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, v. CAUSEWAY VISTA, INC., Respondent.
    No. SC06-333.
    Supreme Court of Florida.
    Dec. 7, 2006.
    Pamela S. Leslie, General Counsel and Gregory G. Costas, Assistant General Counsel, State of Florida, Department of Transportation, Tallahassee, FL, for Petitioner.
    Raymond T. Elligett, Jr. of Schropp, Buell and Elligett, P.A., Tampa, FL and David W. Holloway of Tileston, Simon and Holloway, P.A., Lakeland, FL, for Respondent.
   PER CURIAM.

The Florida Department of Transportation seeks review of the decision of the Second District Court of Appeal in Causeway Vista, Inc. v. State Department of Transportation, 918 So.2d 352 (Fla. 2nd DCA 2005) on the ground that it expressly and directly conflicts with State Department of Transportation v. Denmark, 366 So.2d 476 (Fla. 4th DCA 1979), on a question of law. We accepted jurisdiction on that basis but upon further consideration, we have now determined that Causeway Vista and Denmark address different situations and are not in conflict. Because there is no conflict, we exercise our discretion and discharge jurisdiction. Accordingly, this review proceeding is hereby dismissed.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, C.J., dissents.


text:
    In re AMENDMENTS TO FLORIDA SMALL CLAIMS RULES.
    No. SC07-179.
    Supreme Court of Florida.
    July 5, 2007.
    Honorable Pauline M. Drayton, Chair, the Small Claims Rules Committee, Circuit Judge, Fourth Judicial Circuit, Jacksonville, FL, John F. Harkness, Jr., Executive Director, and Madelon Horwich, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Florida Bar’s Small Claims Rules Committee (Committee) has filed its regular-cycle report of proposed rules in accordance with Florida Rule of Judicial Administration 2.140(b). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes the creation of new form 7.347 (Satisfaction of Judgment). The form is identical to form 1.981 in the Florida Rules of Civil Procedure and will put parties on notice that a judgment has been satisfied. Prior to submission to the Court, the proposed form was published in The Florida Bar News, and interested parties were invited to comment. One comment was received by the Committee, but no changes were made to the proposal. After submission to the Court, the form was again published for comment, but no comments were received.

Upon consideration, we adopt proposed form 7.347 and amend the Florida Small Claims Rules as reflected in the appendix to this opinion. The amendments shall become effective January 1, 2008, at 12:01 a.m.

It is so ordered.

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

APPENDIX

FORM 7.347. SATISFACTION OF JUDGMENT

SATISFACTION OF JUDGMENT

The undersigned, the owner and holder of that certain final judgment rendered in the above-captioned civil action, dated ., recorded in . County, Official Records Book .... beginning at Page., does hereby acknowledge that all sums due under it have been fully paid and that final judgment is hereby satisfied and is canceled and satisfied of record.

DATED on.

Judgment Owner and Holder (or their attorney)

Committee Note

2007 Amendment. This satisfaction of judgment is a general form. It is a new form. To ensure identity of the signer, notarization is prudent but not required. If a certified copy of the judgment is recorded, it may be prudent to include that recording information.

      . The Committee originally proposed two other amendments to the Florida Small Claims Rules. The Committee withdrew those amendments prior to the submission of its report.


text:
    In re AMENDMENTS TO THE FLORIDA PROBATE RULES.
    No. SC07-153.
    Supreme Court of Florida.
    July 5, 2007.
    Peter A. Sachs, Chair, Florida Probate Rules Committee, West Palm Beach, FL, John F. Harkness, Jr., Executive Director and J. Craig Shaw, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Sean O. Cadigan, Tampa, FL, and Keela Roberts Samis, St. Petersburg, FL, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Probate Rules. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(b).

BACKGROUND

On January 29, 2007, the Florida Probate Rules Committee (Committee) filed a regular-cycle report recommending amendments to several of the Florida Probate Rules, as well as the adoption of two new rules. The Committee proposes amendments to existing rules,5.040 (Notice); 5.041 (Service of Pleadings and Papers); 5.200 (Petition for Administration); 5.210 (Probate of Wills Without Administration); 5.241 (Notice to Creditors); 5.490 (Form and Manner of Presenting Claims); 5.496 (Form and Manner of Objecting to Claim); 5.498 (Personal Representative’s Proof of Claim); 5.499 (Form and Manner of Objecting to Personal Representative’s Proof of Claim); 5.580 (Summary Administration); 5.650 (Resignation or Disqualification of Guardian; Appointment of Successor); 5.670 (Termination of Guardianship on Change of Domicile of Resident Ward); 5.697 (Magistrate’s Review of Guardianship Accountings and Plans); and 5.710 (Reports of Public Guardian). It further proposes the adoption of two new rules: rules 5.095 (General and Special Magistrates) and 5.645 (Management of Property of Nonresident Ward by Foreign Guardian).

DISCUSSION

After the Committee filed its report with the Court, the Court published the proposed amendments in The Florida Bar News. Sean O. Cadigan and Keela Roberts Samis, both members of The Florida Bar, filed a joint comment, the only one filed. Cadigan and Samis, both of whom have served as magistrates in probate cases, suggested the addition of a sentence to the end of subdivision (e) in rule 5.697 to read: “The magistrate shall be required to file a report only if a hearing is held pursuant to subdivision (d) of this rule or if specifically directed to do so by the court.” They believed the additional sentence would make it clear that a magistrate would not need to prepare and file a magistrate’s report or adhere to the exception period when the magistrate assists the court in the review of guardianship reports, but does not conduct a hearing to review the report.

In its response to the comment, the Comipittee agreed that the addition of the sentence proposed by Cadigan and Samis would avoid a possible misinterpretation of the rules and asked the Court to incorporate the sentence proposed by Cadigan and Samis into its proposal.

CONCLUSION

Having taken the proposed amendments, the comment, and the Committee’s response into consideration, we hereby adopt the amendments to the Florida Probate Rules as set forth in the appendix to this opinion, including the additional sentence at the end of subdivision (e) in rule 5.697, suggested by Cadigan and Samis. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments will become effective on January 1, 2008, at 12:01 a.m.

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

APPENDIX

RULE 5.040. NOTICE

(a) Formal Notice.

(l)-(2) [NO CHANGE]

(8) Formal notice shall be served:

(A) by sending a copy by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt as follows:

(i) to the attorney representing an interested person; or

(ii) to an interested person who has filed a request for notice at the address given in the request for notice; or

(iii) to an incapacitated person to the person’s usual place of abode and to the person’s legal guardian, if any, at the guardian’s usual place of abode or regular place of business; or, if there is no legal guardian, to the incapacitated person at the person’s usual place of abode and on the person, if any, having care or custody of the incapacitated person at the usual place of abode or regular place of business of such custodian; or

(iv) to a minor whose disabilities of nonage are not removed, by serving the persons designated to accept service of process on a minor under chapter 48, Florida Statutes; or

£w)(v) on any other individual to the individual’s usual place of abode or to the place where the individual regularly conducts business; or

(v)(vi) on a corporation or other business entity to its registered office in Florida or its principal business office in Florida or, if neither is known after reasonable inquiry, to its last known address; or

(B) as provided in the Florida Rules of Civil Procedure for service of process; or

(C) as otherwise provided by Florida law for service of process.

(4)-(5) [NO CHANGE]

(b)-(d) [NO CHANGE]

Committee Notes

[NO CHANGE]

Rule History

1975 Revision: Implements section 731.301, Florida Statutes.

1977 Revision: Reference to elisor.

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

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

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

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

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

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

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

2003 Revision: Committee notes revised.

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

2006 Revision: Committee notes revised.

2007 Revision: New subdivision (a)(3)(A)(iv) inserted in response to Cason ex rel. Saferight v. Hammock, 908 So.2d 512 (Fla. 5th DCA 2005), and subsequent subdivisions renumbered accordingly. Committee notes revised.

Statutory References

§ 1.01(3), Fla. Stat. Definitions.

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

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

§ 731.105, Fla. Stat. In rem proceeding.

§ 731.201(16), (20), Fla. Stat. General definitions.

§ 731.301, Fla. Stat. Notice.

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

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

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

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

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

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

§ 733.901, Fla. Stat. Final discharge.

ch. 743, Fla. Stat. Disability of nonage of minors removed.

§ 744.106, Fla. Stat. Notice.

§ 744.301, Fla. Stat. Natural guardians.

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

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

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

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

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

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

Rule References

[NO CHANGE]

RULE 5.041. SERVICE OF PLEADINGS AND PAPERS

(a) [NO CHANGE]

(b) Service; How Made. When service is required or permitted to be made on an interested person represented by an attorney, service shall be made on the attorney unless service on the interested person is ordered by the court. Except when serving formal notice, or when serving a motion, pleading, or other paper in the manner provided for service of formal notice, service shall be made by delivering or mailing a copy of the motion, pleading, or other paper to the attorney or interested person at the last known address or, if no address is known, leaving it with the clerk of the court. If the interested person is a minor whose disabilities of nonage are not removed, and who is not represented by an attorney, then service shall be on the persons designated to accept service of process on a minor under chapter 48, Florida Statutes. Service by mail shall be complete upon mailing except when serving formal notice or when making service in the manner of formal notice. Delivery of a copy within this rule shall be complete upon

(1) handing it to the attorney or to the interested person; or

(2) leaving it at the attorney’s or interested person’s office with a clerk or other person in charge thereof; or

(3) if there is no one in charge, leaving it in a conspicuous place therein; or

(4) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing that person of the contents; or

©transmitting it by facsimile to the attorney’s or interested person’s office with a cover sheet containing the sender’s name, firm, address, telephone number, facsimile number, and the number of pages transmitted. When delivery is made by facsimile, a copy shall also be served by any other method permitted by this rule. Facsimile delivery occurs when transmission is complete.

Service by delivery after 4:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.

(c)-(g) [NO CHANGE]

Committee Notes

[NO CHANGE]

Rule History

1984 Revision: New rule. Subdivision (c) is same as former rule 5.040(d).

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

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

1996 Revision: Subdivision (b) amended to allow service to be made by facsimile. Committee notes revised.

2000 Revision: Subdivision (b) amended to clarify requirements for service of pleadings and papers. Subdivision (e) amended to clarify date of filing. Editorial changes in subdivision (f).

2008 Revision: Committee notes revised.

2005Revision: Changes in subdivisions (b) and (f) to clarify service requirements, and editorial changes in (e).

2006 Revision: Committee notes revised.

2007 Revision: Provisions regarding service on a minor added in subdivision (b) in response to Cason ex rel. Saferight v. Hammock, 908 So.2d 512 (Fla. 5th DCA 2005). Committee notes revised.

Statutory References

ch. 89, Fla. Stat. Proceedings relating to children.

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

ch. 61, Fla. Stat. Dissolution of marriage; support; custody.

ch. 63, Fla. Stat. Adoption.

§ 731.201, Fla. Stat. General definitions.

§ 731.301, Fla. Stat. Notice.

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

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

§ 733.705(2), (4), Fla. Stat. Payment of and objection to claims.

ch. 743, Fla. Stat. Disability of nonage of minors removed.

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

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

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

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

ch. 751, Fla. Stat. Temporary custody of minor children by extended family.

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla. Prob. R. 5.025 Adversary proceedings.

Fla. Prob. R. 5.030 Attorneys.

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.042 Time.

Fla. Prob. R. 5.150(c) Order requiring accounting.

Fla. Prob. R. 5.180(a)(l-) Waiver and consent.

Fla. Prob. R. 5.240(a) Notice of administration.

Fla. Prob. R. 5.340(d) Inventory.

Fla. Prob. R. 5.550 Petition to determine incapacity.

Fla. Prob. R. 5.560 Petition for appointment of guardian of an incapacitated person.

Fla. R. Civ. P. 1.080 Service of pleadings and papers.

Fla. R. Jud. Admin. 2.505 Attorneys.

RULE 5.095 GENERAL AND SPECIAL MAGISTRATES

(a) General Magistrates. The court may appoint general magistrates as the court finds necessary. General magistrates shall be members of The Florida Bar and shall continue in office until removed by the court. The order making an appointment shall be recorded. Each general magistrate shall take the oath required of officers by the Florida Constitution. The oath shall be recorded before the magistrate begins to act-

lb) Special Magistrates. The court may appoint members of The Florida Bar as special magistrates for any particular service required by the court. Special magistrates shall be governed by all laws and rules relating to general magistrates, except special magistrates shall not be required to make oath unless specifically required by the court. For good cause shown, the court may appoint a person other than a member of The Florida Bar as a special magistrate.

(c) Reference. No referral shall be made to a magistrate without the consent of the parties. . When a referral is made to a magistrate, either party may set the action for hearing before the magistrate.

(d) General Powers and Duties. Every magistrate shall act under the direction of the court. Process issued by a magistrate shall be directed as provided by law. All grounds for disqualification of a .judge shall apply to magistrates.

(e) Bond. When not otherwise provided by law, the court may require magistrates who are appointed to dispose of real or personal.property to give bond and surety conditioned for the proper payment of all money that may come into their hands and for the due performance of their duties. The bond shall be made payable to the State of Florida and shall be for the benefit of all persons aggrieved by any act of the magistrate.

(f) Hearings. Hearings before any magistrate may be held in the county where the action is pending or at any other place by order of the court for the convenience of the witnesses or the parties. The magistrate shall assign a time and place for proceedings as soon as reasonably possible after a referral is made and give notice to all parties. If any party fails to appear, the magistrate may proceed ex parte or may continue the hearing to a future day, with notice to the absent party. The magistrate shall proceed with reasonable diligence and the least practicable delay. Any party may apply to the court for an order directing the magistrate to accelerate the proceedings and to make a report promptly. Evidence shall be taken in writing or by electronic recording by the magistrate or by some other person under the magistrate's authority in the magistrate’s presence and shall be filed with the magistrate’s report. The magistrate may examine and take testimony from the parties and their witnesses under oath on all matters contained in the referral and may require production of all books, papers, writings, vouchers, and other documents applicable to those matters. The magistrate shall admit only evidence that would be admissible in court. The magistrate may take all actions concerning evidence that may be taken by the court. All parties accounting before a magistrate shall bring in their accounts in the form of accounts payable and receivable, and any other parties who are not satisfied with the-account may examine the accounting party orally or by interrogatories or deposition as the magistrate directs. All depositions and documents that have been taken or used previously in the action may be used before the magistrate.

(g) Magistrate’s Report. The magistrate’s report shall contain a description of the matters considered and the magistrate’s conclusion and any recommendations. No part of any statement of facts, account, charge, deposition, examination, or answer used before the magistrate shall be recited.

(h) Filing Report; Notice; Exceptions. The magistrate shall file the report and serve copies on the parties. The parties may serve exceptions to the report within 10 days from the time it is served on them. If no exceptions are filed within that period, the court shall take appropriate action on the report. All timely filed exceptions shall be heard on reasonable notice by either party.

(i) Application of Rule. This rule shall not apply to the appointment of magistrates for the specific purpose of reviewing guardianship inventories, accountings, and plans as otherwise governed by law and these rules.

Committee Notes

Rule History

2007 Revision: This rule, patterned after Florida Rule of Civil Procedure 1.490, is created to implement the use of magistrates in probate and guardianship proceedings other than those specifically addressed in rule 5.697.

Rule References

Fla. Prob. R. 5.697 Magistrates’ review of guardianship inventories, accountings, and plans.

Fla. R. Civ. P. 1.490 Magistrates.

RULE 5.200. PETITION FOR ADMINISTRATION

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

(a)-(g) [NO CHANGE]

(h) in an intestate estate, a statement that after the exercise of reasonable diligence the petitioner is unaware of any unrevoked wills or codicils, or if the petitioner is aware of any unrevoked wills or codicils, a statement why the wills or codicils are not being probated-, - or-otherwise-a statement of-the facts concerning-any such will or codicil;

(i) in a testate estate, a statement identifying all unrevoked wills and codicils being presented for probate, and a statement that the petitioner is unaware of any other unrevoked wills or codicils or, if the petitioner is aware of any other unrevoked wills or codicils, a statement why the other wills or codicils are not being probated; and

(j) [NO CHANGE]

Committee Notes

Rule History

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

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

1988 Revision: Editorial changes. Committee notes revised.

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

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

2003 Revision: Committee notes revised.

2007 Revision: Editorial changes in (h) and (i).

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.210. PROBATE OF WILLS WITHOUT ADMINISTRATION

(a)Petition and Contents. A petition to admit a decedent’s will to probate without administration shall be verified by the petitioner and shall contain:

(a)(1) a statement of the interest of the petitioner, the petitioner’s name and address, and the name and office address of the petitioner’s attorney;

(b)(2) the name, last known address, social security number, date and place of death of the decedent, and state and county of the decedent’s domicile;

(e)(3) so far as is known, the names and addresses of the surviving spouse, if any, and the beneficiaries and their relationships to the decedent, and the date of birth of any who are minors;

(d)(4) a statement showing venue; ’

(e)(5) a statement whether domiciliary or principal proceedings are pending in another state or country, if known, and the name and address of the foreign personal representative and the court issuing letters;

(fR6) a statement that there are no assets subject to administration in Florida;

(g)(7) a statement identifying all unre-voked wills and codicils being presented for probate and a statement that the petitioner is unaware of any other unrevoked wills or codicils or, if the petitioner is aware of any other unrevoked wills or codicils, a statement why the other wills or codicils are not being probated; and

(h)(8) a statement that the original of the decedent’s last will is in the possession of the court or accompanies the petition, or that an authenticated copy of a will deposited with or probated in another jurisdiction or that an authenticated copy of a notarial will, the original of which is in the possession of a foreign notary, accompanies the petition.

(b) Service. The petitioner shall comply with rule 5.240 with regard to service of a copy of the petition.

(c) Objections. Objections to the validity of the will shall follow the form and procedure set forth in these rules pertaining to revocation of probate. Objections to the venue or jurisdiction of the court shall follow the form and procedure set forth in the Florida Rules of Civil Procedure.

Committee Notes

[NO CHANGE]

Rule History

1975 Revision: Proof of will may be taken by any Florida circuit judge or clerk without issuance of commission.

1984 Revision: This rule has been completely revised to set forth the procedure for proving all wills except lost or destroyed wills and the title changed. The rule requires an oath attesting to the statutory requirements for execution of wills and the will must be proved before an order can be entered admitting it to probate. Former rules 5.280, 5.290, and 5.500 are included in this rule. Committee notes revised.

1988 Revision: Editorial and substantive changes. Change in (a)(3) to clarify which law determines validity of a notarial will; change in (a)(4) to clarify requirement that will of a Florida resident must comply with Florida law; adds new subdivision (b) to set forth required contents of petition for probate of will; moves former (b) to (c). Committee notes expanded; citation form change in committee notes.

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

1996 Revision: Subdivision (a)(4) changed to allow authenticated copies of wills to be admitted to probate if the original is filed or deposited in another jurisdiction.

2002 Revision: Substantial revision to the rule setting forth the requirements of a petition to admit a will to probate when administration is not required. Self proof of wills is governed by the Florida Statutes. Former subdivision (a)(4) amended and transferred to new rule 5.215. Former subdivision (a)(5) amended and transferred to new rule 5.216.

2003 Revision: Committee notes revised.

2007 Revision: Existing text redesignat-ed as subdivision (a) and editorial change made in (a)(7). New subdivisions (b) and (c) added to provide for service of the petition and the procedure for objections consistent with the procedures for probate of a will with administration. Committee notes revised.

Statutory References

[NO CHANGES]

Rule References

Fla. Prob. R. 5.015 General definitions.

Fla. Prob. R. 5.205(a)(7) Filing evidence of death.

Fla. Prob. R. 5.215 Authenticated copy of will.

Fla. Prob. R. 5.216 Will written in foreign language.

Fla. Prob. R. 5.240 Notice of administration.

RULE 5.241. NOTICE TO CREDITORS

(a) Publication and Service. Unless creditors’ claims are otherwise barred by law, the personal representative shall promptly publish a notice to creditors and serve a copy of the notice on all creditors of the decedent who are reasonably ascertainable and, if required by law, on the Agency for Health Care Administration. Service of the notice shall be either in the manner-provided for by informal notice, or in the manner provided for service of formal notice at the option of the personal representative. Service on one creditor by a chosen method shall not preclude service on another creditor by another method.

(b)-(d) [NO CHANGE]

Committee Notes

[NO CHANGE]

Rule History

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

2003 Revision: Committee notes revised.

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

2007 Revision: Editorial change in (a).

Statutory References

[NO CHANGE]

Rule Reference

[NO CHANGE]

RULE 5.490. FORM AND MANNER OF PRESENTING CLAIM

(a) Form. A creditor’s statement of claim shall be verified and filed with the clerk and shall state:

(1) the basis for the claim;

(2) the amount claimed;

(3) the name and address of the creditor;

(4) the security for the claim, if any; and

(5) whether the claim is currently due or involves an uncertainty and, if not due, then the due date and, if contingent or unliquidated, the nature of the uncertainty.

(b)-(e) [NO CHANGE]

(f) Service by Personal Representative. If the personal representative files a claim individually, or in any other capacity creating a conflict of interest between the personal representative and any interested person, then at the time the claim is filed, the personal representative shall serve all interested persons with a copy of the claim and notice of the right to object to the claim. The notice shall state that an interested person may object to a claim as provided by law and rule 5.496. Service shall be either by informal notice or in the manner provided for service of formal notice. Service on one interested person by a chosen method shall not preclude service on another interested person by another method.

Committee Notes

[NO CHANGE]

Rule History

1975 Revision: Sets forth the claims procedure to be followed and clarifies the matter of delivery of copies where there are multiple personal representatives or where the attorney of record desires to accept such delivery.

1984 Revision: Extensive editorial changes and requires furnishing of copy of claim to the attorney for the personal representative. Committee notes revised.

1988 Revision: Clarifies the matter of delivery of copies and directs the clerk to mail the same to the attorney for the personal representative unless designations are filed by all personal representatives to the contrary. Subdivision (e) added to implement the procedure found in section 733.704, Florida Statutes. Editorial changes. Committee notes expanded. Citation form change in committee notes.

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

1999 Revision: Reference to repealed rule deleted from committee notes.

2003 Revision: Committee notes revised.

2007 Revision: Editorial change in (a). New (f) added, providing procedure for notice when personal representative files a claim individually or otherwise has a conflict of interest with any interested person regarding a claim.

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.496. FORM AND MANNER OF OBJECTING TO CLAIM

(a) Filing. An objection to a claim, other than a personal representative’s proof of claim, shall be in writing and shall be filed on or before the expiration of 4 months from the first publication of notice to creditors or within 30 days from the timely filing or amendment of the claim, whichever occurs later.

(b) Service. A personal representative or other interested person who files an objection to the claim shall serve a copy of the objection on the claimant within 10 days after the filing of the objection. The objection shall include a certificate of service. If the objection is filed by an interested person other than the personal representative, a copy of the objection shall also be served on the personal representative within 10 days after the filing of the objection.

(c) Notice to Claimant. [NO CHANGE]

Committee Notes

[NO CHANGE]

Rule History

1992 Revision: New rule.

2003 Revision: Reference in (a) to notice of administration changed to notice to creditors. Committee notes revised.

2005 Revision: Removed provision for objections to personal representative’s proof of claim, now addressed in rule 5.498, and subsequent subdivisions relettered. Reference to service on the claimant’s attorney removed because service on the attorney is required by rule 5.041(b). Committee notes revised.

2007 Revision: Editorial change in (a). Second sentence of (b) added to specify that the objection must include a certificate of service.

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.498. PERSONAL REPRESENTATIVE’S PROOF OF CLAIM

(a) Contents. [NO CHANGE]

(b) Service. The proof of claim shall be served at the time of filing or promptly thereafter on all interested persons and all elaimants-listed in-the proof of claim at the ■time of-filing, or immediately-■ thereafter.

Committee Notes

[NO CHANGE]

Rule History

2005 Revision: New rule.

2007 Revision: Subdivision (b) amended to eliminate the need to serve claimants listed as paid on the proof of claim, and clarifying editorial change.

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.499. FORM AND MANNER OF OBJECTING TO PERSONAL REPRESENTATIVE’S PROOF OF CLAIM

(a) Filing. An objection to a personal representative’s proof of claim shall be in writing and shall 4se filed on or before the expiration of 4 months from the first publication of notice to creditors or within 30 days from the timely filing of the proof of claim, whichever occurs later.

(b) Contents. The objection shall identify the particular claim or claims listed as to be paid- item or items to which objection is made. An objection to an item listed on the proof of claim as to be paid shall also contain a statement that the claimant is limited to a period of 30 days from the date of service of an objection within which to bring an independent action as provided by law.

(c) Items Listed as Paid. If an objection is filed to an item listed on the proof of claim as paid, it shall not be necessary for the claimant to file an independent action as to that item. Liability as between estate and the personal representative individually for claims listed on the proof of claim as paid, or for claims treated as if they were listed on the proof of claim as paid, shall be determined in the estate administration, in a proceeding for accounting or surcharge, or in another appropriate proceeding, whether or not an objection has been filed.

(d) Items Paid Before Objection. If an item listed as to be paid is paid by the personal representative prior to the filing of an objection as to that item, the item shall be treated as if it were listed on the proof of claim as paid.

(e)(e) Service. The objector shall serve a copy of the objection on the personal representative and on-each claimant —to which the objection relates, in the case of any objection to an item listed as to be paid, shall also serve a copy on that claimant within 10 days after the filing of the objection. In the case of an objection to an item listed as to be paid, the objection shall include a certificate of service.

(d) Notice to Claimant. — An-objecfioa shail-contain ^statement that the claimant is limited to a- period of-30 days-from-the date-of serviee-of an-obj-ection within which to-bring-an action as provided-by-law- — If the-elaim- objected to is paid prior to the objection being filed, -the claim shall be-treated as if it were listed on the proof of claim as paid.

Committee Notes

If the-claim to-which the-person objects is listed on the proof of claim as paid or is deemeeb-to have been listed as -paid-(because-the claim-had been-listed as-to be paid, but was in-fact paid-subsequent to the filing of the proof of claim but prior to the filing of an objection to the claim), it shall not- be necessary for the claimant to file an independent action-on that claim on account of the objection. — I-ssues of-liability as between the- estate and- the personal representative individually — for that-elaim shall be-determined in the-estate administration, -in a proceeding for-accounting or surcharge, or in-another appropriate-proceeding.- This rule represents an implementation of the procedure found in section 733.705, Florida Statutes, with respect to a proof of claim filed by the personal representative. The rule recognizes the different treatment between items listed on a proof of claim as having been paid versus items listed as to be paid. An objection to an item listed as to be paid is treated in the same manner as a creditor’s claim and there is a requirement to furnish notice of the time limitation in which an independent action or declaratory action must be filed after objection to a claim.

Rule History

2005 Revision: New rule.

2007 Revision: Editorial change in (a). Extensive revisions to rest of rule to clarify the differences in procedure between items listed as paid and items listed as to be paid. Committee notes revised.

Statutory Reference

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.530. SUMMARY ADMINISTRATION

(а) Petition. The petition shall be verified as required by law and shall contain the statements required by law and the following:

(1) Facts showing that the petitioners age — entitled to summary administration.

(2) A schedule of all assets-required by law to be listed-and the estimated value of each, — separately—designating—protected homestead and-exempt property.

' (3-)-Qne of the-following shall be include&

(1) a statement of the interest of each petitioner, each petitioner’s name and address, and the name and office address of each petitioner’s attorney;

(2) the name, last known address, social security number, and date and place of death of the decedent, and the state and county of the decedent’s domicile;

(3) so far as is known, the names and addresses of the surviving spouse, if any, and the beneficiaries and their relationship to the decedent and the date of birth of any who are minors;

(4) a statement showing venue;

(5) a statement whether domiciliary or principal proceedings are pending in another state or country, if known, and the name and address of the foreign personal representative and the court issuing letters;

(б) a statement that the decedent’s will, if any, does not direct administration as required by chapter 733, Florida Statutes;

(7)a statement that the value of the entire estate subject to administration in this state, less the value of property exempt from the claims of creditors, do'es not exceed $75,000 or that the decedent has been dead for more than 2 years;

' (8) a description of all assets in the estate and the estimated value of each, and a separate description of any protected homestead and exempt property;

(9) a statement either that all creditors’ claims are barred or that a diligent search and reasonable inquiry for any known or reasonably ascertainable creditors has been máde and one of the following:

. (A) A statement that the estate is not indebted.

(-B)-A statement — that—all—ereditors-elaims are barred.

(Q(B) A -statement that the petitioners have-made diligent search and-reasonable Btqmy-for any-known or reasonably ascertainable creditors, the The name and address of each creditor, the nature of the debt, the amount of the debt and whether the amount is estimated or exact, and when the debt is due. If provision for payment of the debt has been made other than for full payment in the proposed order of distribution, the following information shall be shown:

(i) The name of the person who will pay the debt.

(ii) The creditor’s written consent for substitution or assumption of the debt by another person.

(iii) The amount to be paid if the debt has been compromised.

(iv) If the debt is to be-paid in other than 1 lump -s-um or as directed by court order, the timo-and method of payment. The terms for payment and any limitations on the liability of the person paying the debt;

(10) in an intestate estate, a statement that after- the exercise of reasonable diligence each petitioner is unaware of any unrevoked wills or codicils;

(11) in a testate estate, a statement identifying all unrevoked wills and codicils being presented for probate, and a statement that each petitioner is unaware of any other unrevoked will or codicil; and

(4)(12)-A a schedule of proposed distribution of all probate assets and the person to whom each asset is to be distributed.

(b) Service. The joinder in, or consent to, a petition .for summary administration is not required of a beneficiary who will receive full distributive share under the proposed distribution. Any beneficiary and any known or reasonably ascertainable creditor not joining or consenting shall receive formal notice of the petition.

(b)(c) Testate Estate. In a testate estate, on the filing of the petition for summary administration, the decedent’s will shall be proved and admitted to probate.

(e)(d) Order. If the court determines that the decedent’s estate qualifies for summary administration, it shall enter an order distributing the probate assets and specifically designating the person to whom each asset is to be distributed.

Committee Notes

[NO CHANGE]

Rule History

1977 Revision: Changes to conform to 1975 statutory revision. Established the requirements of a petition for summary, administration and provided for the hearing thereon and the entry of the order of distribution of the assets.

1984 Revision: Extensive revisions and editorial changes. Committee notes revised.

1988 Revision: Editorial change in caption of (a). Committee notes revised.

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

2002 Revision: Replaces “homestead” with “protected homestead” in (a)(2) to conform to addition of term in section 731.201(29), Florida Statutes. Committee notes revised.

2003 Revision: Committee notes revised.

2005 Revision: Subdivision (a)(3) amended to include requirements of section 735.206(2), Florida Statutes.

2007 Revision: Rule substantially rewritten to require petition to include essentially the same information required to be stated in a petition for administration and to require the petitioners to specify facts showing they are entitled to summary administration. New subdivision (b) added to provide for formal notice of the petition, and subsequent subdivisions relet-tered.

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.645 MANAGEMENT OF PROPERTY OF NONRESIDENT WARD BY FOREIGN GUARDIAN

(a) Petition. A guardian of the property of a nonresident ward, duly appointed by a court of another state, territory, or country, who desires to manage any part or all of the property of the ward located in this state, may file a verified petition for authority to manage the property. The petition shall state:

(1) the circumstances of the guardian’s appointment;

(2) a description of the property and its estimated value; and

(3) the indebtedness, if any, existing against the ward in this state.

(b) Designation of Resident Agent. The guardian shall designate a resident agent as required by these rules.

(c) Oath. The guardian shall file an oath as required by these rules.

(d) Filing of Authenticated Copies. The guardian shall file authenticated copies of:

(1) letters of guardianship or other authority to act as guardian; and

(2) bond or other security, if any.

(e) Order. The court shall determine if the foreign bond or other security is sufficient to guarantee the faithful management of the ward’s property in this state. The court may require a new guardian’s bond in this state in an amount it deems necessary. The order shall authorize the guardian to manage the property and shall specifically describe the property.

Committee Notes

Rule History

2007 Revision: New rule.

Statutory References

§ 744.306, Fla. Stat. Foreign guardians.

§ 744.307, Fla. Stat. Foreign guardian may manage the property of nonresident ward.

Rule References

Fla. Prob. R. 5.110 Address designation for personal representative or guardian; designation of resident agent and acceptance.

Fla. Prob. R. 5.600 Oath.

RULE 5.650. RESIGNATION OR DISQUALIFICATION OF GUARDIAN; APPOINTMENT OF SUCCESSOR

(a)-(h) [NO CHANGE]

(i) Waiver. The successor guardian, and any other — interested person, may in writing waive:

(1) any portion o-f-the resignation and petition for — discharge, including the- final report;

(2) the time for filing objections;

(3) service of the-resignation and peti-tien-for discharge; and

(4) service of the notice-of resignation and petition for discharge.

3Xi) Disqualification. Any guardian who is improperly appointed, or who becomes disqualified to act after appointment, shall immediately file a resignation and petition for discharge and proceed in accordance with this rule.

(kXj) Nonresident Guardians. Nonresident guardians appointed before October 1, 1989, shall not be automatically disqualified to serve and shall not be required to resign and initiate their own removal.

Committee Notes

Rule History

1975 Revision: Substantially the same as sections 744.467 and 744.471, Florida Statutes, with editorial changes.

1977 Revision: No change in rule. Change in committee note to conform to statutory renumbering.

1988 Revision: Editorial changes in (a). Text of rule 5.590 inserted in (b). Editorial change in (c). Captions added to subdivisions. Committee notes revised. Citation form changes in committee notes.

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

1991 Revision: Substantial revision of entire rule to harmonize with procedure for termination of guardianship under rules 5.670 and 5.680. Subdivision (k) transferred from temporary emergency rule 5.800.

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

2007 Revision: Subdivision (i) deleted because right of waiver is substantive. Subsequent subdivisions relettered.

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.670. TERMINATION OF GUARDIANSHIP ON CHANGE OF DOMICILE OF RESIDENT WARD

(a)-(h) [NO CHANGE]

(i)Waiver. The- foreign guardian, and any other interested person, may-in writing waive;

(1) any portion of the petition for discharge, including the final repor-⅜⅝

(2) the time-fog- filing objections?

(3) sendee of the petition for-discharge?

(4) service of-the notice of petition for-discharge.

Committee Notes

Rule History

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

1984 Revision: Adds 30-day requirement for filing objections. Editorial changes and committee notes revised.

1988 Revision: Editorial change in (c). First and last sentences of (d) deleted and clarifying word added.

1989 Revision: Prior rule adopted as temporary emergency rule.

1991 Revision: Substantial revision of entire rule to harmonize with procedure for discharge of guardian under rule 5.680 and to conform to section 744.524, Florida Statutes.

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

2007 Revision: Subdivision (i) deleted because right of waiver is substantive. Committee notes revised.

Statutory References

§ 744.102(⅞(8),(9), Fla. Stat. Definitions.

§ 744.201, Fla. Stat. Domicile of ward.

§ 744.202, Fla. Stat. Venue.

§ 744.2025, Fla. Stat. Change of ward’s residence.

§ 744.524, Fla. Stat. Termination of guardianship on change of domicile of resi-. dent ward.

§ 744.531, Fla. Stat. Order of discharge.

Rule References

[NO CHANGE]

RULE 5.697. MAGISTRATES’ REVIEW OF GUARDIANSHIP INVENTORIES, ACCOUNTINGS, AND PLANS

(a) General Magistrates. The court may appoint general magistrates to review guardianship inventories, accountings, and plans. General magistrates shall be members of The Florida Bar and shall continue in office until removed by the court. The order appointing a general magistrate shall be recorded. Each general magistrate shall take the oath required of officers of the court by the Florida Constitution. The oath shall be recorded before the magistrate begins to act.

(b) Special Magistrates. In connection with the court’s review of guardianship inventories, accountingSj and plans, the court may appoint members of The Florida Bar as special magistrates for any particular service required by the court. Special magistrates shall be governed by all laws and rules relating to general magistrates except special magistrates shall not be required to take an oath unless specifically required by the court. For good cause shown, the court may appoint a person other than a member of The Florida Bar as a special magistrate.

(c)-(d) [NO CHANGE]

(e) Magistrate’s Report. The magistrate’s report shall contain a description of the matters considered and the magistrate’s conclusions and any recommendations. No part of any statement of facts, account, charge, deposition, examination, or answer used before the magistrate shall be recited. The magistrate shall be required to file a report only if a hearing is held pursuant to subdivision (d) of this rule or if specifically directed to do so by the court.

(f) Filing Report; Service; Exceptions. The magistrate shall file a report with the court and serve copies on the parties. The parties may serve exceptions to the report within 10 days from the date the report is served on them. If no exceptions are timely filed, the court shall take appropriate action on the report. All timely filed exceptions may shall be heard by the court on reasonable notice by any party.

Committee Notes

Rule History

1991 Revision: This is a new rule, patterned after Florida Rule of Civil Procedure 1.490.

' 1992 Revision: Editorial change. Citation form change in committee notes.

2004 Revision: Change in nomenclature from “master” to “magistrate” to track similar change in the Florida Statutes.

2007 Revision: Title of rule and subdivisions (a) and (b) amended to include inventories. “Shall” substituted for “may” in last sentence of subdivision (f). Committee notes revised.

Statutory Reference

[NO CHANGE]

Rule References

Fla. Prob. R. 5.095 General and special magistrates.

Fla. R. Civ. P. 1.490 Magistrates.

RULE 5.710 REPORTS OF PUBLIC GUARDIAN

The public guardian, as the guardian of a ward, shall submit reports as required by law to-the' chief judge of the circuit and file a copy-file:

(a) an initial report as required by law;

(b) annual guardianship reports, which shall include the dates of quarterly visits to the ward, as required by law;

(c) a report within 6 months of his or her appointment as guardian of a ward, which shall also be filed with the executive director of the Statewide Public Guardianship Office, stating:

(1) the public guardian’s efforts to locate a family member or friend, other person, bank, or corporation to act as guardian of the ward; and

(2) the ward’s potential to be restored to capacity;

(d) an annual report, filed with the Statewide Public Guardianship Office, by September 1 for the preceding fiscal year, on the operations of the office of public guardian; and

(e) a report of an independent audit by a qualified certified public accountant, file with the Statewide Public Guardianship Office every 2 years.

Committee Notes

Rule History

1987 Revision: This is a new rule and was promulgated to establish procedures to accommodate the Public Guardian Act. See § 744.701, et seq., Fla. Stat. See also Fla. Prob. R. 5.560.

1989 Revision: Prior rule adopted as temporary emergency rule.

1991 Revision: Editorial changes.

1992 Revision: Citation form changes in committee notes.

2007 Revision: Rule extensively amended to specify reports a public guardian is required to file.

Statutory Reference

[NO CHANGE]

Rule Reference

[NO CHANGE]