author: TAYLOR, Judge.

text:
    Price KNIGHT v. STATE.
    6 Div. 539.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.

      J. William White, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and G.R. Trawick, Randall B. James, and R. Emmett Poundstone III, Asst. Attys. Gen., for appellee.
   TAYLOR, Judge.

This is an appeal from denial of a petition for a writ of habeas corpus by Price Knight, an inmate of Bryce Hospital. Appellant Knight was confined after having been found not guilty of a first degree murder charge by reason of insanity. He petitioned for a writ of habeas corpus on August 30, 1983, and that petition was denied by the circuit court. Petitioner’s appeal from this decision was not timely and was dismissed by this court. He again petitioned for habeas corpus and the parties stipulated to the facts. This second petition was denied on May 28, 1984, and is now before us on appeal.

A person who has been acquitted of a criminal charge, such as murder in this case, on the grounds that he is insane bears the burden of proof when he sues to be released from confinement. He must prove by a preponderance of the evidence that he is no longer mentally ill or dangerous, in order to prevail in a habeas corpus proceeding. Section 15-21-3, Code of Alabama (1975) states:

“Any person confined as insane may prosecute a writ of habeas corpus ...; and, if the judge ... shall determine at the hearing that the person is insane, such decision does not bar a second application alleging that such person has been restored to sanity.”

The case of Lynch v. Baxley, 386 F.Supp. 378, 391 (M.D.Ala.1974), Civil Action No. 74-89-N, and the unpublished order dated May 6, 1975, establishes the principles governing the retention of people in mental hospitals in Alabama.

As the three-judge federal panel stated in the Lynch order:

“In the case of a person presently confined and receiving treatment for his mental illness, however, his need to be recommitted to the custody of the Department of Mental Health or to the Veteran’s Administration may not be readily demonstrable by the same type of ‘recent overt act’ which is constitutionally prerequisite to the commitment of an individual at liberty. In such cases, the need for a recommitment must be established by evidence which provides some factual basis to support the hospital staffs recommendation that recom-mitment is necessary for the patient’s health and well-being.” (emphasis supplied)

It stands to reason that where someone is compelled to accept medication and is in a relatively non-stressful environment, such as is sought to be maintained at Bryce Hospital, there may not have been any recent overt act of violence. In the case of persons already confined to Bryce Hospital, this requirement was dealt with by the federal court in the foregoing paragraph of the order issued by the court dealing with persons already confined in a mental institution. There need only be “some factual basis” to support the hospital staff’s recommendation.

In Williams v. Wallis, 734 F.2d 1434 (11th Cir.1984), the court stated:

“As noted previously, special patients are those who are considered dangerous. Binding precedent in this circuit holds, however, that differences in release procedures based on dangerousness are constitutionally permissible. See Powell v. Florida, 579 F.2d 324, 333 & n. 15 (5th Cir.1978) (dangerousness of insanity ac-quittee ‘justifies treating a person differently from the ones otherwise civilly committed for purposes of deciding whether the patient should be released’).”

The evidence adduced at the hearing held in this case is that the petitioner, Price Knight, had already been released from Bryce Hospital once. Once free, he had stopped taking his medication and had killed a man. He was adjudicated not guilty by reason of insanity. At the hearing, Dr. Miller testified that the petitioner is currently mentally ill, if mentally ill is defined as “anything covered in the [diagnostic and statistical] manual [of the American Psychiatric Association].”

Two doctors testified that the petitioner was mentally ill, posed a real and present threat of substantial harm to himself and others, that the danger was evidenced by a recent overt act, that there was treatment available for the illness diagnosed, and that confinement was necessary for petitioner’s and the community’s safety and well-being. They testified the commitment was the least restrictive alternative necessary and available for treatment of petitioner’s illness. The evidence of the need to retain the petitioner is conclusive. The Circuit Court of Tuscaloosa County was clearly justified in denying the petition for writ of habeas corpus filed by Price Knight.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: ADKINS, Justice. BOYD, Chief Justice,

license: Public Domain

text:
    TOWN OF PALM BEACH et al., Petitioners, v. PALM BEACH COUNTY, et al., Respondents.
    No. 63254.
    Supreme Court of Florida.
    Oct. 18, 1984.
    Rehearing Denied Jan. 15, 1985.

      John A. DeVault, III of Bedell, Dittmar, DeVault, Pillans & Gentry, Jacksonville, and W. Peter Burns of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for Town of Palm Beach.
    Carl V.M. Coffin, West Palm Beach, for City of West Palm Beach.
    M.A. Galbraith, Jr., Boca Raton, for City of Boca Raton.
    Nason, Gildan & Yeager, P.A., Paul M. Sullivan, Jr., West Palm Beach, for Village of North Palm Beach.
    Charles F. Schoech, Co. Atty., West Palm Beach, and Robert L. Nabors of Nabors, Potter, McClelland, Griffith & Jones, Titus-ville, for respondents.
   ADKINS, Justice.

This cause comes before us on petition for discretionary review of a question certified to be of great public importance by the Florida District Court of Appeal, Fourth District. Palm Beach County v. Town of Palm Beach, 426 So.2d 1063 (Fla. 4th DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The petitioners, four municipalities situated within Palm Beach County, allege that they have been subjected to “double taxation” in contravention of article VIII, section 1(h), Florida Constitution, which provides:

Property situate within municipalities shall not be subject.to taxation for services rendered by the county exclusively for the benefit of the property or residents in unincorporated areas.

Each of the petitioners challenges the use of property taxes collected by Palm Beach County which support the Palm Beach County Sheriffs road patrol and detective divisions, and also challenges the use of county-wide revenues to finance the maintenance and construction of local “nonclas-sified” roads in the unincorporated sections of the county. Additionally, two of the petitioners, the Town of Palm Beach and the City of West Palm Beach, dispute the use of their county-collected property taxes for the maintenance of neighborhood parks.

The trial court resolved each issue adversely to the county and held that the four challenged services do not provide a “real and substantial benefit” to the municipalities’ residents or property. The Fourth District Court of Appeal reversed, finding a lack of competent substantial evidence to support the trial court’s ruling and concluded that each of the services do substantially benefit the petitioners. Recognizing the need for “equitable and fair and uniform treatment under the taxing statutes,” the district court certified the following question to this Court:

Whether the “real and substantial benefits” test established by City of St. Petersburg v. Briley, Wild & Associates, 239 So.2d 817 (Fla.1970) has been correctly interpreted and appropriately applied in this case?

426 So.2d at 1072.

The issue of county taxation of municipalities for services accruing primarily to the benefit of unincorporated areas is not one of equity and fairness. The constitutional proscription against “double taxation,” article VIII, section 1(h), Florida Constitution, and indeed, the statutory prohibition, section 125.08, Florida Statutes (1981), are not framed in terms of proportionality. Each merely requires that the municipality and its residents receive a benefit which must achieve a magnitude described as “real and substantial.” Briley, Wild, 239 So.2d at 823. As we have stated in the past, substantial is not necessarily a quantifiable term and a benefit may achieve substantiality without being direct or primary. All that is required is a minimum level of benefit which is not illusory, ephemeral or inconsequential. Id.; Burke v. Charlotte County, 286 So.2d 199 (Fla.1973); City of Ormond Beach v. County of Volusia, 383 So.2d 671 (Fla.1973); Alsdorf v. Broward County, 373 So.2d 695 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 754 (Fla.1980). To meet this test, it is incumbent upon the petitioners to prove a negative — that a service provided by the county and funded by county-wide revenues does not provide a real and substantial benefit to the particular municipality. Briley, Wild, 239 So.2d at 823. In any given case this will be a heavy burden, but it is by no means impossible to prove or “automatic” in the sense that the constitutional test can never be met. See, e.g., Manatee County v. Town of Longboat Key, 352 So.2d 869 (Fla. 2d DCA 1977), rev’d in part on other grounds, 365 So.2d 143 (Fla.1978).

In the present case, the facts are essentially undisputed. Although petitioners contend that there was highly conflicting lay and expert testimony, a review of the disputed factual issues pointed to by petitioners demonstrates that it is not the facts which are contraverted, but rather the legal conclusions to be drawn therefrom. For example, the petitioners state that evidence of the benefit derived by the municipality from the sheriff's backup or standby capacity was in conflict at trial. It is clear to us, however, that the existence and availability of standby assistance is not disputed, nor is there any question that the backup capacity has not been widely used in the past. What is at issue is the legal conclusion to be drawn from this fact. As this Court has consistently stated, where the facts are essentially undisputed, the legal effect of the evidence will be a question of law. Uhrig v. Redding, 150 Fla. 480, 8 So.2d 4 (1942); Florida East Coast Railway v. Thompson, 93 Fla. 30, 111 So. 525 (1927).

As a further corollary to the issue of the alleged conflict in the factual evidence presented, the Court must address the propriety of admitting into evidence expert opinion testimony that the benefits conferred upon the municipalities were not “real and substantial.” Petitioners argue that section 90.703, Florida Statutes (1981), permits opinion testimony on an ultimate issue to be decided by the trier of fact. See North v. State, 65 So.2d 77, 88 (Fla.1952). We agree. However, section 90.703 does not imply the admissibility of all opinions. If the witness’ conclusion tells the trier of fact how to decide the case, and does not assist it in determining what has occurred, then it is inadmissible. See, e.g., United States v. Milne, 487 F.2d 1232, 1235 (5th Cir.1973).

Although the expert may testify to whether certain benefits were received by the municipality, and may, within his expertise, testify to the importance of potential or unquantified benefits, he is precluded from opining whether a particular benefit is or is not “real and substantial” within the meaning of Briley, Wild. An illustration of this principle is found in Gifford v. Galaxie Homes, Inc., 223 So.2d 108, 111 (Fla. 2d DCA 1969). In Gifford, an action for negligent construction, it was held proper for the duly qualified expert to respond when asked whether the premises were “constructed and maintained according to reasonably safe construction and engineering standards.” Id. See also, Millar v. Tropical Gables Corp., 99 So.2d 589 (Fla. 3d DCA 1958). However, it would have been improper for the expert to assert to the trier of fact that the premises were “negligently constructed.” While this is to some degree a matter of semantics, we find the distinction necessary. See Ehrhardt on Evidence, § 90.703 at 451 (West 1977). Otherwise, the trier of fact is being directed to arrive at a conclusion which it should be free to determine independently from the facts presented. We do not think that section 90.703 was intended to be so broad. See e.g., Ehrhardt, § 90.703; Feldman v. Department of Transportation, 389 So.2d 692, 694 (Fla. 4th DCA 1980).

Although the trial court has broad discretion in determining the subject on which an expert may testify, its decision will be disregarded if that discretion has been abused. Johnson v. State, 393 So.2d 1069 (Fla.1980); Buchman v. Seaboard Coast Line Railroad, 381 So.2d 229 (Fla. 1980). In the instant case, the trial judge permitted the petitioners’ expert on municipal taxation to repeatedly opine that the challenged services did not provide the requisite real and substantial benefit. That particular opinion testimony should not have been admitted or considered by the trial court.

As the district court has previously noted, any decision concerning article VIII, section 1(h) “is limited to the facts, taxable years, and circumstances of [the] particular case ...” Alsdorf v. Broward County, 373 So.2d 695, 701 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 754 (Fla.1980). Accordingly, any decisions concerning the dual taxation issue must be carefully scrutinized to ascertain the facts existing in the individual county.

At trial, petitioners presented several statistical reports and other quantifiable evidence to demonstrate that the sheriff’s road patrol and detective divisions do not provide a substantial benefit to the municipalities’ citizens. The reports, garnered from the sheriff’s computer records, expressed in percentage form the actual assists to the city by the road patrol and detective divisions as a proportion of overall municipal police activity. The only other evidence presented by petitioners was opinion testimony that the use of sheriffs patrol cars by off-duty deputies does not provide any crime-deterrence benefit to the municipalities in which the deputies reside.

Even though it is the petitioners’ burden to demonstrate the absence of real and substantial benefit, and not the respondents’ burden to prove the presence of any requisite benefit, the respondents presented numerous former and present police officers who testified to benefits which are extant but non-quantifiable. For instance, the respondents presented evidence that reduction of crime in the urban unincorporated corridor between the turnpike and the municipalities’ boundaries will necessarily have some spillover effect by curtailing the movement of crime into the cities. Testimony was presented concerning the ever-present standby capability of the sheriff’s department, which is available to assist any municipality in times of emergency or when requested. Municipal residents often travel in the unincorporated areas and thereby temporarily fall within the protective jurisdiction of the sheriff. Whenever called upon by a municipality, though historically infrequently, the sheriff’s patrol and detective divisions have responded.

In addition, it is undisputed that the assist chart prepared by petitioners reflects only the minimum number of times a deputy-sheriff has entered a municipality to give aid or assistance to municipal residents. The sheriff stated that many non-crime municipal assists are likely to be unreported by deputies. The petitioners concede that the assist chart does not reflect time, money or effort expended in each assist. The evidence at trial was substantial that the majority of reported inter-municipality assists involved nonroutine matters requiring above average expenditures of deputy time, money and expertise. Finally, the quantified assist chart failed to fully account for assists such as the recovery by the sheriff’s office of property stolen in a municipality.

Of course, as petitioners note, even allowing a margin of error of 100 per cent in the assist chart’s numerical data, the number of assists would still remain minimal when stated as a percentage of police activity. However, the relative number of assists is not the sole issue. The constitutional question is whether the municipal residents substantially benefit from the challenged programs, and not whether the county provides proportionally significant services.

Taken independently, each of the above benefits would not be constitutionally substantial. We are, however, constrained to review the benefits delivered by the challenged services as a composite. In doing so, we find that the sheriff’s road patrol and detective divisions provide not only a minimal level of direct benefit, but also a substantial degree of indirect benefit. That benefit, as a matter of law, given the geographic makeup of Palm Beach County, is sufficient to withstand the petitioners’ heavy burden of proving a lack of substantial benefit. It is evident from the trial court’s written decision that the trial judge did not discuss and consider many of the above benefits and failed to accord proper weight to the evidence of unquantifiable indirect and potential benefits. Whereas the constitutional test does not rest solely on quantitative benefits, the district court has correctly applied the holding of Briley, Wild to the instant case and we approve its decision on this point.

Respondent, Palm Beach County, pursuant to section 337.03, Florida Statutes (1981), has responsibility for all minor arterial roads within the county not on the state highway system, all collector roads, whether located in the municipal or unincorporated area of the county, and all local or nonclassified roads located within the unincorporated areas of the county. The petitioners challenge the use of their county-collected taxes to fund maintenance and construction of the nonclassified roads.

The entire substance of petitioners’ evidence concerning these roads was that categorically a nonclassified road, because of its description and unincorporated area location, could not possibly be of real and substantial benefit to the municipal residents. The expert who presented this generalized characterization testified that he did not know who used the roads, did not know the volume of traffic on any of the roads, and did not know whether property abutting the nonclassified roads was commercial or residential. The record reflects that petitioners merely identified the total road system of the county and separated it into two components — classified and non-classified.

Palm Beach County identified at least thirteen nonclassified roads which have traffic volumes comparable to roads on the classified road system. It was stipulated that the thirteen identified roads were not intended to be all-inclusive. Although the county did not present evidence of who used the roads, it did note that the roads were not subdivision streets or shell-rock as petitioners had described all nonclassi-fied roads. We reiterate that the petitioners must bear the burden here. The respondents are not required to prove that the existing benefits are substantial. The petitioners must prove the nonexistence or nonsubstantiality of benefits.

From the foregoing, it is clear in this uncontested factual record that the petitioners presented a paucity of evidence and failed to carry the burden of proving that local nonclassified roads do not provide a real and substantial benefit to municipal residents.

We disapprove, however, the district court’s statement that a municipal petitioner must identify all roads which do not provide a substantial benefit. Palm Beach County, 426 So.2d at 1070. In this case, petitioners merely failed to identify any roads falling into the requisite category. Because we do not wish to impose a mechanical test under which municipalities may never prevail, we refrain from requiring future municipal contestants to institute expensive road-by-road examinations and user studies. Although such studies may be necessary or helpful, it is for the individual claimant to make the decision of whether such evidence will be presented. We find that the district court has correctly applied the requirements of Briley, Wild to this point.

The National Recreational and Park Association, which promulgates the park standards relied upon by the respondents’ expert, defines a neighborhood park as one which consists of one to four acres of land and is located within walking distance of the intended user. There are no neighborhood parks in the Town of Palm Beach or the City of West Palm Beach, although there were at the time of trial approximately thirty neighborhood parks throughout the remainder of the county in both incorporated and unincorporated areas. Additionally, the Palm Beach County Director of Parks testified that there are no such facilities within walking distance of either municipality.

The trial court ruled that any benefits enjoyed by the municipalities’ residents from county operated neighborhood parks were at best illusory. We agree. As the trial judge noted in his written judgment, the Town of Palm Beach is an island, connected to the mainland only by several bridges. Each of these bridges leads into West Palm Beach. Therefore, in order to take advantage of a neighborhood park, a resident of Palm Beach would have to leave the town, pass through a large city which has no county-funded neighborhood parks, and arrive at an ultimate destination surely not within walking distance. In addition, we think it highly unlikely that a resident of Palm Beach would bypass the facilities within the town’s limits in order to recreate at a distant, moderately inaccessible park which has no facilities.

As to the City of West Palm Beach, an analogous situation arises. West Palm Beach has several large county operated nonneighborhood parks within its boundaries and maintains its own local parks. Although there may be county funded neighborhood parks in municipalities adjoining West Palm Beach, these are not within walking distance of West Palm Beach residents. In order to actively and intentionally use a county operated neighborhood park, a resident of West Palm Beach would have to ignore his or her own city’s local parks and bypass nearby large nonneighborhood parks with extensive recreational facilities. The few residents doing so would not raise the level of use to one of real and substantial benefit.

We find that the district court improperly required a showing of “statistical data as to park attendance, residence of park users or other relevant factors ...” Palm Beach County, 426 So.2d at 1070. Briley, Wild requires only that a municipality challenging a county levied tax prove the absence of a real and substantial benefit. Although this is a difficult burden, not every case will require extensive and costly studies. It remains for the individual petitioner to determine what evidence will be presented to the trier of fact. In the instant case, national park standards and the location of the many parks in Palm Beach County demonstrate the insignificant possibility that residents of West Palm Beach and Palm Beach will use parks that are not maintained for their benefit. This case falls directly within the confines of Briley, Wild, where we stated that:

We can conceive of services sought to be rendered by a county within a particular unincorporated area which would have no consequential benefits to the municipalities of the county, such as ... a park or recreation facility for the residents of [an unincorporated area] ...

Briley, Wild, 239 So.2d at 824.

We recognize that a city resident may visit a neighboring municipality or outlying unincorporated area and use a neighborhood park, inasmuch as such parks are available to the general public without restriction. We find, from the geographical makeup of Palm Beach County and the locations of the numerous parks, neighborhood and otherwise, that use of neighborhood parks by these two petitioners’ residents is illusory, ephemeral and inconsequential, and does not rise to the magnitude required by the real and substantial benefits test.

On this point alone, we find that the district court has misapplied the test enunciated in Briley, Wild. We therefore quash the district court’s determination that the petitioners did not meet their burden of proving lack of substantial benefit.

Respondents have cross-appealed on the issue of the propriety of the trial court’s imposition of conditions on the otherwise automatic stay pending review. Since a determination of this issue will not affect the rights of the parties, and the issue is not one involving the general public interest, the question need not be addressed. See State v. Kinner, 398 So.2d 1360, 1362 (Fla.1981).

For the foregoing reasons, the certified question is answered in the affirmative as to the sheriff’s road patrol, detective divisions, and nonclassified roads, and answered in the negative as to the neighborhood parks. We remand this cause to the district court with instruction that it be further remanded to the trial court for proceedings consistent with this opinion.

It is so ordered.

overton, McDonald, ehrlich and SHAW, JJ., concur.

BOYD, C.J., concurs in part and dissents in part with an opinion, in which ALDERMAN, J., concurs.

BOYD, Chief Justice,

concurring in part and dissenting in part.

I concur with those portions of the majority opinion that reject the argument of the municipalitiés that certain county services, financed by county-wide taxation, are benefitting only residents in the unincorporated areas of the county. I dissent from that portion of the majority opinion that holds that certain county-financed “neighborhood parks” in unincorporated locations benefit only the residents of unincorporated areas in violation of the state constitutional right of residents of municipalities in the county.

The sheriff of a county in Florida is the sheriff for all the people of the county. The fact that municipalities may organize police forces to provide their residents with additional law enforcement services does not relieve municipal residents of the obligation of paying county taxes to finance the operation of the sheriff's office. The sheriff is accountable to the voters for the use of the resources entrusted to the office. Similarly, county-maintained roads in unincorporated areas are available for use by everyone. Favoritism toward one area of the county at the expense of another can be remedied through the political process.

Regarding the issue of “neighborhood parks,” I believe the record shows that such parks are available for use and enjoyment by anyone who happens to be in the area, including county residents, city residents, and travellers from other areas. They are an amenity provided by the whole county community for use by the whole county community. Even if, as the majority finds, it is unlikely that city residents would use the neighborhood parks in question, their existence and maintenance in those neighborhoods serves the interest of and benefits all the residents of the entire county, both in and out of the incorporated areas. Palm Beach County is a metropolitan community in which the need for urban services and amenities serving the whole community does not stop at municipal boundary lines.

I would answer the certified question in the affirmative as to all issues and approve the district court decision in its entirety.

ALDERMAN, J., concurs.


author: ALDERMAN, Justice.

text:
    Raymond Robert CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 64012.
    Supreme Court of Florida.
    Oct. 18, 1984.
    Rehearing Denied Jan. 15, 1985.

      Neal R. Lewis, Miami, Richard Hersch, South Miami, and Patrice Talisman, Miami, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appel-lee.
   ALDERMAN, Justice.

Raymond Robert Clark appeals the order of the trial court denying his Florida Rule of Criminal Procedure 3.850 motion to vacate. We affirm.

Clark formulated a plan to kidnap someone at a bank and to demand money from that person. After driving to several bank parking lots in search of a victim, he abducted a forty-nine-year-old businessman. He ordered the victim to drive to a secluded spot, ordered him out of the car at gunpoint, and then ordered him to write a check payable to cash in the amount of five thousand dollars. Clark then led the victim into the bushes, made him kneel down, and shot him twice in the head. Thereafter, Clark made several threatening phone calls to the victim’s son demanding ten thousand dollars for his father’s safe return.

Clark was convicted of murder in the first degree, kidnapping, and extortion and was sentenced to death. His convictions and sentences were affirmed. Clark v. State, 379 So.2d 97 (Fla.1979). The Supreme Court of the United States denied certiorari. Clark v. Florida, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981).

On November 9, 1982, Clark filed a motion to vacate, set aside, or correct conviction and sentence. He alleged several grounds for relief, some of which he abandoned Or waived in the trial court. The primary ground which he alleged as a basis for relief was that he did not receive effective assistance of counsel prior to and during the trial of his case. At the conclusion of the hearing on the rule 3.850 motion, the trial court stated:

So we are talking about effective or ineffective counsel. There are just some cases that you hear where the most effective counsel is ineffective not because he is ineffective on that particular day. It’s just because the facts of the case are so overwhelming against his client, that regardless of how effective, how experienced and well trained and well prepared he is for the case, the facts can’t be changed, and I believe this is one of those cases.
... I feel that the quality and the thoroughness and the vigor of this case from appointed counsel, that is, the Public Defender, if another person, a wealthy man were charged with the same crime and had to hire outside counsel, it would bankrupt him.
I think all in all it was probably one of the best tried first degree murder cases that I’ve tried, and I’ve probably tried at least 15 capital cases in 16 years on the bench. I have imposed the death penalty on four different occasions, and I can’t think of a case that was a better tried case from the prosecutor’s standpoint and from the defense standpoint, and I don’t think there has been a sufficient— any showing of prejudice in the way in which the case was prepared, in the quality of counsel or in the way in which this case was tried.

The trial court then entered an order denying the motion to vacate. Specifically in response to Clark’s allegations of ineffectiveness, the court held that counsel vigorously pursued its pretrial motion for change of venue; that, at the time of trial, the Florida Rules of Criminal Procedure did not provide for such an “independent confidential expert” as requested by Clark’s counsel; and that, in fact, the evidence received at the hearing on this motion indicates that Clark was quite competent to stand trial and further gave no signs to his attorney of any potential insanity defense. As to Clark’s allegation that his trial counsel failed to seek the appointment of a psychiatrist for the sentencing stage of the trial, the court held that there was nothing in the record that would suggest that such an expert would have been of any benefit to Clark. The trial court explained:

[Tjhere is nothing in the record that would suggest that such an expert would have been of any benefit to the defendant. In fact, if a psychiatric expert had been appointed pursuant to the rules as they were then being interpreted, such expert’s report would have been available to the prosecution and in all likelihood, as indicated in the hearing held on this motion, would have had a detrimental effect upon the defendant. Once again, the Rules of Criminal Procedure as they then existed did not provide for an “independent confidential expert” and pursuant to the Witt case, defense counsel certainly could not be held to anticipate this subsequent change in the law.

As to Clark’s allegation with regard to the alleged failure to call lay witnesses, either at trial or sentencing, for purposes of mitigation, the trial court held that these were tactical decisions made by counsel at the time of trial for very logical and sound reasons. The trial court found that counsel who defended this case put forth the maximum effort and exhibited exceptional expertise in the preparation and conduct of this case and that counsel was as effective as possible. The court concluded that there has been no showing of prejudice to the defendant in the way in which this case was prepared or in the way this case was tried and that the standards for ineffective assistance of counsel set forth in Knight v. State, 394 So.2d 997 (Fla.1981), have not been met in any respect.

Clark appeals the denial of his motion and argues that the trial court’s refusal to allow a confidential psychiatric expert deprived him of his right to effective assistance of counsel, that the effect of the trial court’s denial of the points raised in his 3.850 motion affects his right to proportionality review of his death sentence, and that he was denied effective assistance of trial counsel at the pretrial stage, at the trial phase, and at the penalty phase of his trial.

We find no merit to any of these grounds and affirm the trial court.

His first point, that the court erred at trial in refusing to allow him a confidential psychiatric expert, was raised in his initial direct appeal from his convictions and sentences and was addressed by this Court. We held that under the circumstances, the trial court did not err in denying Clark’s request. Clark v. State, 379 So.2d at 103. Clark cannot now raise this issue in a 3.850 motion by relating it to a claim of ineffective assistance of counsel. His argument is that the trial court erred in denying his request and that this error deprived him of effective assistance of counsel.

Clark also points out that since his trial and appeal, we have adopted Rule of Criminal Procedure 3.216 in The Florida Bar, In Re Rules of Criminal Procedure, 389 So.2d 610, 624 (Fla.1980), effective July 1, 1980, which provides:

(a). When in any criminal case counsel for a defendant adjudged to be indigent or partially indigent, whether public defender or court appointed, shall have reason to believe that the defendant may be incompetent to stand trial or that he may have been insane at the time of the offense, he may so inform the court who shall appoint one expert to examine the defendant in order to assist his attorney in the preparation of his defense. Such expert shall report only to the attorney for the defendant and matters related to the expert shall be deemed to fall under the lawyer-client privilege.

He contends that this rule change was a change in the law sufficient to meet the test announced by this Court in Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). We disagree and hold that this rule change does not constitute a fundamental constitutional change in the law. In Witt, we emphasized that only major constitutional changes of law which constitute a development of fundamental significance, such as in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), could be raised for the first time under rule 3.850. See also State v. Washington, 453 So.2d 389 (Fla.1984). We further explained:

In contrast to these jurisprudential upheavals [such as Coker and Gideon ] are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.

387 So.2d at 929-30 (footnote omitted). This amendment to the criminal rules does not meet the standards we announced in Witt, and Clark’s claim is not cognizable in a rule 3.850 motion.

His second argument regarding proportionality review relates directly to his first argument regarding denial of his request for appointment of a psychiatric expert and is without merit.

Finally, we find no merit whatsoever to his claims of ineffective assistance of counsel. The trial court’s findings in this regard are supported by the record. Clark failed to establish that trial counsel was ineffective at any stage of the trial proceedings.

The trial court denied Clark’s claims on the basis of the standards we announced in Knight v. State. Since the entry of its order, the Supreme Court of the United States rendered its decision in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), outlining the standards to be used in determining whether a defendant was denied his sixth amendment right to effective assistance of counsel. These standards do not differ significantly from the standards we previously announced in Knight v. State. Downs v. State, 453 So.2d 1102 (Fla.1984); Jackson v. State, 452 So.2d 533 (Fla.1984). Under the Supreme Court’s criteria announced in Strickland v. Washington, in order for a defendant to succeed on a claim of ineffectiveness of counsel so as to obtain reversal of a conviction or death sentence, he must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. The measure of performance is reasonableness under prevailing professional norms at the time of counsel’s conduct. The purpose of the effective assistance guarantee, the Supreme Court stated, is simply to ensure that criminal defendants receive a fair trial. It stated:

A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.

104 S.Ct. at 2066. See also Downs v. State, 453 So.2d at 1108.

Clark has not demonstrated that counsel’s performance was deficient under the guidelines announced in Strickland v. Washington. Moreover, we reiterate what we said in Downs v. State:

In Florida, there has been a recent proliferation of ineffectiveness of counsel challenges. Criminal trials resolved unfavorably to the defendant have increasingly come to be followed by a second trial of counsel’s unsuccessful defense. Although courts have found most of these challenges to be without merit, defense counsel, in many of the cases, have been unjustly subjected to unfounded attacks upon their professional competence. A claim of ineffective assistance of counsel is extraordinary and should be made only when the facts warrant it. It is not a claim that is appropriate in every case. It should be the exception rather than the rule.

453 So.2d at 1107. The facts of the present case did not warrant the assertion of a claim of ineffective assistance of counsel.

Accordingly, we affirm the trial court’s denial of Clark’s rule 3.850 motion.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: PER CURIAM.

text:
    Gerald Eugene STANO, Appellant, v. STATE of Florida, Appellee.
    No. 63947.
    Supreme Court of Florida.
    Nov. 1, 1984.
    Rehearing Denied Jan. 15, 1985.

      James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen. and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Stano appeals his adjudication of guilty of two counts of first-degree murder and his two death sentences. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and we affirm.

Stano pleaded guilty to first-degree murder for the strangulation/drowning death of one woman in 1975 and the shooting/drowning death of another woman in 1977. The court accepted the pleas and adjudicated Stano guilty as charged. Sta-no waived a sentencing jury, and, after a three-day sentencing hearing, the trial court sentenced him to death on each charge.

On appeal Stano argues that the trial court improperly imposed the death penalty and erred in denying his motion to preclude imposition of the death penalty and that section 921.141, Florida Statutes .(1983), is unconstitutional. We find no merit to any of these points. Moreover, although not raised on appeal, we find a competent basis for the trial court’s acceptance of Stano’s guilty pleas and the adjudications of guilt.

For the 1977 murder the trial court found three aggravating circumstances (previous conviction of six first-degree murders; heinous, atrocious, or cruel; and committed in a cold, calculated, and premeditated manner) and three nonstatutory mitigating circumstances (Stano’s difficult early childhood, his marital difficulties, and his confessions and guilty pleas) applicable. For the 1975 murder the trial court found the same aggravating and mitigating factors plus one additional aggravating circumstance (committed during a kidnapping). Stano now claims that the trial court found improper aggravating circumstances, considered evidence of nonstatuto-ry aggravating circumstances, and failed to give substantial weight to relevant and appropriate mitigating factors. We disagree with these contentions.

Although Stano does not challenge the court's finding previous convictions of violent felonies in aggravation, it is important to note the court’s conclusion regarding this circumstance. Prior to these proceedings, Stano had pleaded guilty to six counts of first-degree murder for the killing of six young women and, pursuant to a plea bargain agreement, had been sentenced to six consecutive terms of life imprisonment without eligibility of parole for twenty-five years. In the instant sentencing orders the trial court stated:

The Court is aware it is not to engage in a mere mechanical tabulation of criteria, but rather it is to carefully weigh and evaluate the evidence. In this case the large number of prior murder convictions is the dominant factor. This criteria is entitled to great weight. By itself, it would outweigh the mitigating factors, and call for the death penalty. This factor is, however, accompanied by additional aggravating circumstances. The aggravating circumstances far outweigh the mitigating circumstances.

(Emphasis supplied.)

We need not depend solely on the trial court’s statement as to the weight given to the first aggravating factor as set out above, however, because, notwithstanding Stano’s contentions, we find the challenged aggravating circumstances to have been established beyond a reasonable doubt. In support of finding these murders to have been committed in a cold, calculated, and premeditated manner the trial court noted that Stano struck both women, thereby stunning them, to keep them from leaving the car, drove to isolated areas (seventeen and one-half miles in some twenty-five minutes and twenty miles in thirty-five to forty minutes in the respective cases), and then, after ordering the women to leave the car, strangled one and shot the other in the head. The trial court could discern no reason or justification for these murders and termed them “completely senseless.” These murders show the heightened premeditation needed to meet the test in Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982), and the trial court did not err in finding both crimes to have been committed in a cold, calculated, and premeditated manner. Compare Card v. State, 453 So.2d 17 (Fla.1984) (Card injured victim, transported her to a secluded area, made her leave the car, and then cut her throat), and Jones v. State, 440 So.2d 570 (Fla.1983) (killed totally without provocation).

The trial court’s finding heinous, atrocious, or cruel in aggravation is also amply supported. Both women had been struck by Stano and then driven considerable distances. Each must have known what was going to happen to her. Stano argues that, after being struck, the women could have been too dazed to have contemplated their fates. In fact, however, each woman was conscious and left the car under her own power when told to do so. On the totality of the circumstances each of these cases meets the standard of State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), and supports a finding of heinous, atrocious, or cruel.

Stano also argues that the court’s use of the same facts to support both of these aggravating circumstances is an improper doubling of these two factors. As we have discussed before, heinous, atrocious, or cruel pertains more to the nature of the killing and the surrounding circumstances while cold, calculated, and premeditated pertains more to state of mind, intent, and motivation. Mason v. State, 438 So.2d 374 (Fla.1983), cert, denied, — U.S. —, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984). The facts of these cases support both of these aggravating circumstances. See Squires v. State, 450 So.2d 208 (Fla.), cert. denied, — U.S. —, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984); Hill v. State, 422 So.2d 816 (Fla.1982), cert. denied, 460 U.S. 1017, 103 S.Ct. 1262, 75 L.Ed.2d 488 (1983). These two circumstances have not been improperly doubled up, and we find no merit to this argument.

In these sentencing orders the trial court, relying on Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982), stated: “While lack of remorse is in itself not an aggravating circumstance, it is a factor to be considered in determining” whether a homicide is heinous, atrocious, or cruel. In Sired we stated:

While lack of remorse cannot constitute an aggravating circumstance, it can be offered to the jury and judge as a factor which goes into the equation of whether or not the crime was specially heinous, atrocious, or cruel.

Id. at 971. More recently, however, we revisited this issue and held that

henceforth lack of remorse should have no place in the consideration of aggravating factors. Any convincing evidence of remorse may properly be considered in mitigation of the sentence, but absence of remorse should not be weighed either as an aggravating factor nor as an enhancement of an aggravating factor.

Pope v. State, 441 So.2d 1073, 1078 (Fla.1983) (emphasis supplied).

Stano now argues that the trial court’s reliance on Sired nullifies the finding of heinous, atrocious, or cruel. We disagree. The trial court did not find lack of remorse to be a nonstatutory aggravating circumstance; he merely used it to support a factor which is already amply supported by the record. We cannot fault the trial court for following a decision of this Court and for failing to second-guess this Court.

The facts also support the trial court’s finding the 1975 murder to have been committed during a kidnapping. That woman tried to leave the car, but Stano struck her and locked the car doors. The trial court found her confinement not merely incidental to her murder. We find no merit to Stano’s arguments on this point.

As his final challenge to the trial court’s findings as to aggravating and mitigating circumstances, Stano claims that the trial court erred in failing to find the statutory mitigating factors of being under the influence of extreme mental or emotional disturbance and impaired capacity to conform his conduct to the requirements of the law. § 921.141(6)(b), (f). Four psychiatrists and one psychologist reported to the court on Stano as to these factors. The parties stipulated that, if present, the psychologist would have testified that Stano had been under extreme mental disturbance and that his capacity to conform his conduct to the requirements of the law was substantially impaired. One of the psychiatrists testified that he had reached the same conclusions. The other three psychiatrists, on the other hand, testified that, in their opinion, Sta-no’s capacity to conform his conduct to the requirements of the law was not substantially impaired. Two of these doctors also stated that Stano had not been under the influence of extreme mental or emotional disturbance, while the third doctor said that he could not answer that question. After considering the testimony, reports, and arguments of counsel, the court refused to find these factors in mitigation.

Finding or not finding a specific mitigating circumstance applicable is within the trial court’s domain, and reversal is not warranted simply because an appellant draws a different conclusion. Smith v. State, 407 S.2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982). Moreover, it was the court’s duty to resolve the conflicts here, and his determination should be final if it is supported by competent substantial evidence. Martin v. State, 420 So.2d 583 (Fla.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). The testimony relied on by the court is competent substantial evidence, and we find no error in the court’s failure to find these mitigating circumstances applicable.

Prior to sentencing Stano filed a motion to preclude imposition of the death penalty, which the trial court denied. Pursuant to plea agreements, Stano had previously received sentences of life imprisonment for six other first-degree murders that he had pleaded guilty to. He now argues that the

circumstances surrounding the murders in the instant case are no more persuasive to impose the ultimate sanction than were the circumstances surrounding the six (6) previously disposed of murders committed by Mr. Stano in Volusia County, as well as the three (3) convictions and life sentences arising from the Eighth Judicial Circuit.

Therefore, he claims that sentencing him to death for these two murders is disproportionate. We disagree. There was no plea bargain regarding the sentences in the instant cases, and, after comparing these cases with other cases where death has been imposed, we find these sentences both proportionate and warranted. Compare Mann v. State, 453 So.2d 784 (Fla.1984) (abduction and killing without reason), and Jones v. State (no provocation, no justification).

In his last point on appeal Stano presents, in summary fashion, a grab bag of challenges to the constitutionality of section 921.141, both on its face and as applied. As the state points out, and as Sta-no concedes, we have rejected these challenges in previous cases. We see no reason to reconsider them here and find this point to have no merit.

We affirm the adjudications of guilty of first-degree murder and the sentences of death.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

      . The trial court specifically adopted the testimony of these two doctors. Stano now claims that they used an incorrect standard in evaluating him, but our review of the record reveals that this is not so.

      . Stano had previously confessed to a total of nine murders, but was charged with and sentenced for only six of them.

      . In Pulley v. Harris, — U.S. —, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), the Supreme Court reversed Harris v. Pulley, 692 F.2d 1189 (9th Cir. 1982). We therefore disregard Stano's reliance on the ninth circuit’s opinion.

      .If we did as Stano suggests and considered all of the murders Stano has confessed to together, we would be hard pressed to find anyone approaching Stano in number, senselessness, or lack of provocation or motive. Even John Ferguson’s eight death sentences (Ferguson v. State, 417 So.2d 631 (Fla.1982), and Ferguson v. State, 417 So.2d 639 (Fla.1982)) pale in comparison to Stano's history because Ferguson committed all eight murders in only two episodes and at least had robbery and rape for motives.


author: ADKINS, Justice. OVERTON and McDONALD, Judges,

text:
    FLORIDA NATIONAL BANK OF PALM BEACH COUNTY, Etc., Petitioner, v. Ann Cleary GENOVA, Respondent.
    No. 64160.
    Supreme Court of Florida
    Nov. 1, 1984.
    Rehearing Denied Jan. 15, 1985.
    Victoria P. Brenner of Gibson & Adams, West Palm Beach, for petitioner.
    Elaine F. Miller of Miller & Miller, West Palm Beach, for respondent.
   ADKINS, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal reported as Genova v. Florida National Bank, 433 So.2d 1211 (Fla. 4th DCA 1983). We find conflict with Hoffman v. Kohns, 385 So.2d 1064 (Fla. 2d DCA 1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The issue presented here is whether the principle of undue influence is applicable when revoking a revocable trust. We hold that it is not; therefore, we approve the decision of the Fourth District Court of Appeal.

The facts of this case reveal that Mrs. Genova created the Ann Cleary Genova Revocable Trust on January 30, 1979, naming Florida National Bank of Palm Beach County, petitioner, and herself as co-trustees. Under the terms of the trust, she reserved the income for her life and provided for numerous pecuniary gifts to take effect upon her death.

Mrs. Genova, then Ann Cleary, first married Mark Genova on September 5, 1978. At the time she was seventy-six and Mark was thirty-two years old. Ann and Mark Genova were divorced on October 10, 1979, and a final judgment regarding property rights was entered by Judge Sholts on April 28, 1980. The trial judge in the dissolution proceeding invalidated one transfer of certain of Mrs. Genova’s assets to her husband based upon a finding of undue influence practiced upon Mrs. Genova by her husband.

On July 3, 1980, Ann and Mark Genova were remarried. On July 8,1980, five days after their remarriage, Mrs. Genova wrote a letter to a trust officer of Florida National, requesting that her trust be revoked. She wrote this letter in the presence of Mark Genova at his restaurant, the Alibi Bar, on the Alibi’s stationery. On July 9, 1980, Mrs. Genova signed a power of attorney prepared by an attorney introduced to her by Mark Genova, directing the transfer of the trust assets to the account of Ann Cleary Genova in the Pan American Bank of Palm Beach County, Florida. The next day, Mrs. Genova’s attorney presented the power of attorney to a second trust officer at Florida National, who, her testimony shows, refused to accept it because she had reservations about it based on her knowledge of the finding of undue influence in the dissolution proceeding and of the Geno-vas’ remarriage.

Because of its doubts about the validity of the revocation attempts, Florida National petitioned the probate court for instructions as to how to proceed regarding the trust revocations. On the same day, Mrs. Genova filed in the circuit court a petition for writ of mandamus ordering Florida National to transfer the trust assets to the Pan American Bank and requesting damages.

The two cases were consolidated for trial in the probate court. At the conclusion of the trial, the trial judge entered his final judgment granting Florida National’s petition for instructions and dismissing Mrs. Genova’s petition for writ of mandamus. The trial court found that Mrs. Genova’s attempts to revoke the trust were effected through the use of undue influence, practiced intentionally by Mark T. Genova upon Mrs. Genova and were therefore invalid and of no legal significance.

The Fourth District Court of Appeal reversed, finding that whether Mrs. Genova was unduly influenced to revoke the trust by her husband was not the “determinative question.” Instead, the district court considered the issue to be “whether the sett-lor, who is the sole beneficiary of the trust during her lifetime (subject to her right to direct otherwise) could be deprived, prior to her death, of her right to revoke the trust in the absence of judicial determination or medical certification of her physical or mental incapacity.” 433 So.2d at 1213. We agree with the district court that the principle of undue influence has no place in determining whether a competent settlor can revoke a revocable trust; therefore, we approve its decision.

Mrs. Genova has the power to revoke this trust at any time she wishes to do so. The Restatement of Trusts (Second) § 330(1) provides:

§ 330 Revocation of Trust by Settlor
(1) The settlor has power to revoke the trust if and to the extent that by the terms of the trust he reserved such a power.

Paragraph three of the instrument creating the trust expressly manifests her intention that the trust be revocable. It provides, inter alia, under the section dealing with management of the trust, “... unless this Trust Agreement shall have been otherwise revoked or amended....”

It is likewise clear here that Mrs. Genova validly exercised her power to revoke. She initially sought to revoke the trust on July 10, 1980, by means of a letter which was signed by herself and her attorney and which was delivered to the co-trustee bank. Comment (i) of the Restatement of Trusts (Second) § 330 further states:

i. Where no method of revocation specified. If the settlor reserves the power to revoke the trust but does not specify any mode of revocation, the power can be exercised in any manner which sufficiently manifests the intention of the settlor to revoke the trust.
Any definitive manifestation by the settlor of his intention that the trust should be forthwith revoked is sufficient.

Mrs. Genova’s letter clearly manifests her intent to revoke. Hence, once the trustee determines that (1) the settlor has reserved the power to revoke and (2) the power to revoke has been validly exercised, that ends the inquiry. The trustee’s only duty at that point is to return the trust .assets to the settlor. In other words, the trustee’s duties to conserve the trust property and manage it wisely for the benefit of the benficiaries who will receive the trust property at the settlor’s death, ends when the settlor exercises his or her right to revoke.

A revocable trust is a unique type of transfer. According to E. Carr, Revocable Trusts, 5-6 (1980), “[i]t is created when a person, called the settlor, subjects property owned by him. to a trust for the benefit of at least one other person, reserving to himself as settlor-beneficiary the income from the trust property for life and the power to revoke the trust in whole or in part at any time. The other person or persons’ enjoyment of the trust is postponed until the settlor’s death.” By definition, then, when a settlor sets up a revocable trust, he or she has the right to recall or end the trust at any time, and thereby regain absolute ownership of the trust property. This retention of control over property distinguishes a revocable trust from the other types of conveyances in which the principle of undue influence is applied, i.e., gifts, deeds, wills, contracts, etc.

Petitioners rely on Rich v. Hallman, 106 Fla. 348, 143 So. 292 (1932), and Hoffman v. Kohns, 385 So.2d 1064 (Fla. 2d DCA 1980), to support their argument that the principle of undue influence should be applied to revocable trusts. The facts in Rich v. Hallman did not involve a revocable trust, however. In Rich, the donor of an inter vivos gift was seeking to have the transaction rescinded, alleging that it was procured through undue influence. Thus, as we said above, the transaction was completed at the time the gift was made, and the donor no longer retained any control over the ownership of her property. Once the gift is made, the only way that the donor can regain outright ownership of her interest in the property, is to allege undue influence. On the other hand, the beneficiaries of Mrs. Genova’s trust other than herself, who are not parties to this particular proceeding, do not come into possession of any of the trust property until the event of Mrs. Genova’s death, and even this interest is contingent upon her not exercising her power to revoke. Since she is the sole beneficiary of the trust during her lifetime, she has the absolute right to call the trust to an end and distribute the trust property in any way she wishes.

We disagree with the result reached in Hoffman v. Kohns. The Second District Court of Appeal in that case acknowledged that no Florida case had applied the principle of undue influence to the revocation of a living trust. Nevertheless, relying on Rich v. Hallman, it upheld a finding by the trial judge that the particular revocable trust could not be revoked because of the undue influence of the settlor’s wife. Reliance on Rich v. Hallman was misplaced for the reasons which we expressed above. Therefore, we disapprove the holding in Hoffman v. Kohns.

The courts have no place in trying to save persons such as Mrs. Genova, the otherwise competent settlor of a revocable trust, from what may or may not be her own imprudence with her own assets. When she created this trust, she provided a means to save herself from her own incompetence, and the courts can and should zealously protect her from her own mental incapacity. However, when she created this trust, she also reserved the absolute right to revoke if she were not incompetent. In order for this to remain a desirable feature of a trust instrument, the right to revoke should also be absolute.

Accordingly, we approve the decision of the Fourth District Court of Appeal.

It is so ordered.

BOYD, C.J., and ALDERMAN and SHAW, JJ., concur.

OVERTON and McDONALD, JJ., dissent with an opinion.

OVERTON and McDONALD, Judges,

dissenting.

The dissent of Judge Hersey in the decision under review should be approved as the decision of this Court. The trial judge found that the settlor had been unduly influenced causing her to revoke her trust. Her act, therefore, was not the exercise of her right to revoke, but rather was the will of another foisted on her. Under these circumstances the revocation should be voided.

      . There is no question of competency for purposes of this appeal. A separate appeal was filed in the district court which involves the question of the mental capacity of Mrs. Genova. That appeal has been stayed pending the outcome of the decision of this Court in this case. In re: The Trust of Ann Cleary Genova, No. 82-1538.

      . Respondent argues in her brief to this Court and the district court cites in its opinion Restatement (Second) of Trusts § 339, comment a (1957) and Waldron v. Commerce Union Bank, 577 S.W.2d 669, 674 (Tenn.App.1978) as authority for her position that undue influence has no place in the revocation of this trust. While we agree with the propositions quoted from those authorities, they do not resolve the problem in the instant case. Restatement of Trusts (Second) § 339 stands for the proposition that a settlor, who is the sole beneficiary of a trust, may revoke the trust even if he reserved no right to revoke. This section is inapplicable to the instant case for two reasons — first, Mrs. Genova is not the sole beneficiary of this trust, see Restatement (Second) of Trusts, § 127 (1957), and second, she has expressly reserved the right to revoke this trust by the terms of the instrument.

      . The Semanskees, residuary beneficiaries of Mrs. Genova’s revocable trust, were initially parties to this proceeding in the trial court. They were not parties to the original appeal in the Fourth District Court of Appeal, but sought to intervene on rehearing. Their motion to intervene on rehearing was denied by the Fourth District Court of Appeal.


text:
    THE FLORIDA BAR RE WORKERS’ COMPENSATION RULES OF PROCEDURE
    No. 65087.
    Supreme Court of Florida.
    Nov. 29, 1984.
    John F. Harkness, Jr., Executive Director, Tallahassee, for The Florida Bar
    H. George Kagan, Chairman, Deerfield Beach, for The Florida Bar, Workers’ Compensation Rules Committee, petitioner.
   PER CURIAM.

The motion for rehearing is granted. The opinion filed in this case on September 13, 1984, is withdrawn, and the following opinion is substituted in lieu thereof:

The Workers’ Compensation Rules Committee of The Florida Bar has petitioned this Court to approve amendments to the Florida Workers’ Compensation Rules of Procedure. Attached to the report of proposed rule changes is a minority report urging the Board of Governors of The Florida Bar not to recommend the proposed amendment to rule 11. The Board voted unanimously to approve all of the proposed rule changes with the exception of those affecting rule 11. The Board voted to take no position on rule 11 due to the close vote by the Committee. Notice of the proposed amendments was published in The Florida Bar News. One objection to the proposed amendment to rule 11 was filed with this Court.

We have received no adverse comments regarding the remainder of the proposed amendments. We have carefully considered the petition, the report of proposed rules changes, the minority report, the one objection filed, and oral argument. We hereby approve all proposed amendments:

Rulo 1. Rule 4.010

Rule 2.. Rule 4,020

Rule-3, Rule 4.030

fiul»4 Rule 4.040

Rule 5, Rule 4,050

Rule-6; Rule 4.060

Rule-4 Rule 4.070

Rule 8. Rule 4,080

Buie-3, Rule 4.090

Rule 10.. Rule 4.100

Rule 11; Rule 4.110

Rule-42, Rule 4.120

Rule-13. Rule 4,130

Rule-44 Rule 4.140

Rule45, Rule 4.150

Rule 16. Rule 4.160

Rule 44 Rule 4.170

Rule 18. Rule 4.180

Rule 43, Rule 4.190

Rule-20; Rule 4,200

Rule-24 Rule 4.210

Rule -22, Rule 4.220

Rule 23, Rule 4.230

Rule-24Rule 4,240

Rule-25, Rule 4.250

Rule 26, Rule 4.260

Rule 24 Rule 4.270

Comment — Conforms Workers’ Compensation Rules of Procedure to all other Florida rules numbering methods and increases flexibility in the amendatory process while preserving sequential interpretive history of existing rules.

RULE 4.030 FILING AND SERVICE

(c) SERVICE BY MAIL. When service is effectuated by mail, five days shall be added to the time allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. (This sub-section does not apply to the filing requirements for institution of appellate proceedings or Notices of Hearing).

Comment — 1984 Revision: Clarifies Rule 3(c) and 8(a) by specifically excluding fifteen (15) day hearing notice from operation of Rule 3(c).

RULE 4.050 CLAIMS

Claims and notices to controvert shall be filed with the Division at its office in the City of Tallahassee. Claims shall be subject to adjudication or dismissal only by order of the Deputy Commissioner or reviewing court.

Comment — 1984 Revision: Derived from section 440.271, Florida Statutes and Rule 20, Florida Workers’ Compensation Rules of Procedure. Providing for exclusive adjudicatory powers in workers’ compensation matters with the Deputy Commissioner or reviewing court rather than the Division of Workers’ Compensation.

RULE 4.070 APPLICATION FOR HEARING

An application for hearing concerning a claim, made pursuant to Chapter 440, Florida Statutes, shall state concisely in separate numbered paragraphs the reasons for requesting hearing, and the questions at issue or in dispute which the applicant expects the Deputy to hear and determine, with sufficient particularity that the responding or opposing parties may be notified of the purpose of the hearing, including the issues to be heard and determined and specific benefit due and not paid. Application for the first hearing or trial in a cause shall be filed with the Division at Tallahassee. Upon receipt of an application for hearing, all materials filed with or received by the Division shall be incorporated in the file for forwarding to the appropriate Deputy Commissioner who will conduct the hearing. All subsequent materials received or filed also shall be immediately forwarded to the Deputy Commissioner. Applications for any subsequent hearings in that cause shall be filed with the Deputy to whom the case has been assigned, with a copy to the Division. A copy of the application shall be served on counsel for each party and a copy upon any party not represented by counsel. Failure to serve a copy of the application as required shall be grounds for a continuance or cancellation of the hearing.

Comment — 1984 Revision: Implements section 440.25(3)(a), Florida Statutes.

RULE 4.080 NOTICE OF HEARING ON CLAIM: ORDER BY DEPUTY COMMISSIONER

(a)The Deputy shall hold a hearing within ninety (90) days after application for the same, and shall give serve the claimant and other interested parties, at their last known addresses, with at least fifteen, (15) days notice by certified regular mail. The notice shall state with particularity the questions at issue or in dispute which the Deputy will hear and determine. Service of notice of hearing shall be complete upon mailing. Comment — 1984 Revision: Conforms hearing notice requirements to section 440.-25(3)(a), Florida Statutes, as amended to delete requirement of certified mail service, and provides clarification of time periods involved to the effect that minimum fifteen (15) days notice is measured from the date notice is mailed.

RULE 4.090. DISCOVERY

(a) Depositions. Depositions of witnesses or parties, residing within or without the State, may be taken and may be used in connection with proceedings under Chapter 440, Florida Statutes, either upon the order of a Deputy Commissioner or at the instance of any party or prospective party to such proceedings. Depositions may be -taken prior-to-the institution of a claim, if the claimant-is represented-by-an attorney-r-or after the -filing of the claim, in the same manner and-for the same purposes as provided in the Florida Rules of Civil Procedure.

(b) Production of Documents and Entry on Land. The parties shall be subject to discovery procedures dealing with the production of records and other tangible things, and entry upon land or other property for inspection or other purposes within the scope of discovery. The parties shall have thirty (30) days to serve a written response after service of any request under this rule.

(c) Production of Documents from Non-Parties. The parties may also seek the production of documents and other tangible things, within the scope of discovery, for inspection and copying from a person who is not a party pursuant to applicable Florida Rules of Civil Procedure-

Id) Jurisdiction. The Deputy Commissioner shall have jurisdiction to take appropriate action to compel discovery, and may, as circumstances warrant, enlarge or shorten the applicable time for complying with discovery.

(e) When Discovery May be Had. Discovery under this rule may be had prior to the institution of a claim, if the claimant is represented by an attorney, or after the filing of a claim, in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure.

(f) Other Discovery. Interrogatories, Requests for Admission, and other forms of discovery not authorized by this rule shall not be used or permitted in workers’ compensation proceedings.

Comments — 1984 Revision: Subsections (b) through (f) are new and formalize additional forms of discovery already widely used in workers’ compensation proceedings. This rule specifically declines to adopt interrogatories or requests for admission as unduly cumbersome and contrary to the overriding policy consideration for the expeditious resolution of an injured worker’s rights. Although discovery is generally intended to be self-administrating, it is subject to the supervision of the Deputy Commissioner. Stephens v. Southern Furniture Transports, Inc., 420 So.2d 904 (Fla.1st DCA 1982). This rule does not modify and is consistent with the powers and authority conferred upon the Deputy Commissioner pursuant to section 440.33, Florida Statutes.

RULE 4.100 PRETRIAL PROCEDURE

(a) GENERALLY. The Deputy may, on his own motion, or shall on the motion of any party to the action, order hold a pretrial conference, at which the parties shall:

(1) State and simplify the claims, defenses, and issues.

(2) Make appropriate amendments to the claims and defenses.

(3) Stipulate and admit to such facts and documents as will avoid unnecessary proof.

(4) Present, examine, and mark for identification, all exhibits. Impeachment and rebuttal exhibits need not be revealed.

(5) Furnish opposing party the names and addresses of all witnesses. Impeachment witnesses, and rebuttal witnesses thereto, need not be revealed.

(6) Exchange all available written reports of experts where expert opinion is to be offered at trial. The reports should clearly disclose the expert opinion and its basis on all subjects on which the expert will testify. If stipulated into evidence, the parties shall present the reports to the deputy to be so marked. The parties shall consider and determine a limitation on the number of expert witnesses.

(7) Estimate trial time.

(8) Consider and determine such other matters as may aid in the disposition of the cause.

(b) NOTICE: The Deputy shall, fey-or-⅛⅛ give the parties at least fifteen (15) days notice of the pretrial conference. If a party or his attorney fails to attend the conference without good cause, the Deputy may dismiss the claim or strike the defenses, or take such action as may be authorized by law. The Deputy may cancel the pretrial conference upon submission of a exhibits and medical reports attached.

Comment — 1984 Revision: Provides that a party has the right to a pretrial conference upon request. Deletes requirement of notice of pretrial by order.

RULE 4.110 PROSECUTION OF CLAIM BEFORE DEPUTY COMMISSIONER

(a) When a trial has been set by a Deputy Commissioner, all parties shall diligently prosecute and defend the claim. The Deputy Commissioner may cancel or continue a trial on his own motion or on the motion of a party if he finds that the cancellation or continuance is for good cause which has not resulted from lack of diligence in the prosecution or defense of the claim. A notice of voluntary dismissal is without prejudice, except that a second notice of voluntary dismissal by the Claimant operates as an adjudication of denial of any claim for the same benefit or benefits previously the subject of a voluntary dismissal.

(b) Any claim, or any petition to modify, in which it affirmatively appears that no action has been taken by request for hearing, filing of pleadings, order of Deputy Commissioner, payment of compensation, provision of medical care, or otherwise for a period of two-years one year, is subject to dismissal for lack of prosecution. Upon motion to dismiss filed by any interested party, or upon request of the Deputy Commissioner before whom the action is pending, the file shall be forwarded to the appropriate Deputy Commissioner who shall, after-reasonable notice to the par-ties after service of notice to the parties by regular mail, at their last known addresses, and opportunity for hearing, dismiss the claim or petition, unless a party shows good cause why the claim or petition should remain pending.

Comment — 11. (a) 1984 Revision: Conforms workers’ compensation procedure with Florida Rule of Civil Procedure I.420(a)(1). Voluntary dismissal of the same claim or claim for the same benefits is with prejudice and operates as a denial of.the claim for those benefits.

II. (b) 1984 Revision: Conforms nonpro-secution time period to civil practice period of one year.

RULE 4.141 MOTION FOR REHEARING: VACATING, AMENDING ORDER OF DEPUTY COMMISSIONER,

(a) Rehearing. Any party may file with the Deputy Commissioner a motion for rehearing directed to an order not yet final by operation of Section 440.25, Florida Statutes. Such a motion shall state with specificity the grounds on which it is based. The filing of such motion does not toll either the time within which an order becomes final or the time within which an appeal may be filed.

(b) Amending, Vacating Orders. At the Deputy Commissioner’s discretion, an order not yet final by operation of Section 440.25 may be either vacated or amended at either the Deputy’s own initiative or pursuant to motion for rehearing. Grounds for vacating an order may include circumstances in which it appears to the Deputy that due consideration of a motion for rehearing may not be practicable within the time remaining under Section 440.25, Florida Statutes.

(c) Nothing in this rule shall be construed to interfere with the Deputy Commissioner's jurisdiction to either approve of settlements or correct clerical errors, as specified under Rule 4.160(a) of these rules. Comment — This new rule affords parties a rehearing process in response to such First District Court of Appeal pronouncements as are found in Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981) and Dade American Hospital Supply v. Perez, 417 So.2d 296 (Fla. 1st DCA 1982). Though time for filing appeal is not tolled by the filing of a motion for rehearing, subsection (b) specifically invites use of a deputy’s power to vacate as a means of affording the parties additional time for processing a motion for rehearing where circumstances warrant. This flexible process was deemed preferable to the tolling of the appellate filing period in every case of motion for rehearing.

Subsection (b) codifies the long established practice in workers’ compensation litigation: A Deputy Commissioner retains jurisdiction over an order that has not yet become final. The rule implicitly adopts the majority view in Drexel Properties, Inc. v. Brown, 443 So.2d 150 (Fla. 1st DCA 1983), giving the deputy wide latitude in determining whether to amend or vacate an order.

RULE 4.160 APPELLATE REVIEW

(a) NOTICE OF APPEAL. Notice of appeal of an order of a Deputy shall be filed with any Deputy or with the First District Court of Appeal, within thirty (30) days of the date copies of the Deputy’s order were mailed to the parties. Notice of appeal shall contain a certificate of appellant (or cross-appellant) or counsel setting out the periods and classifications of benefits and medical treatment affected by the appeal. Appellant shall file the original and one copy of the notice, accompanied by a $50.00 filing fee, by check or money order, payable to the Clerk of the District Court. Jurisdiction of the District Court is invoked as of the date of filing of the notice of appeal with any Deputy or the Clerk of the First District Court of Appeal. The Deputy Commissioner shall have jurisdiction for the purpose of approving settlements or correcting clerical errors in the order appealed at any time prior to the filing of the record on appeal in the First District Court of Appeal. The Deputy Commissioner shall have jurisdiction to determine whether there has been an abandonment under Rule 4.161.

Comment — 1984 Revision: Provides that both the District Court of Appeal and the Deputy may accept notices of appeal.

Jurisdiction before the filing of the record on appeal is retained by the Deputy in regard to certain administrative tasks and no remand of jurisdiction from the District Court is necessary.

The final sentence of sub-section (a) complements the new Rule 4.161, and is intended to avoid possible confusion over jurisdiction to determine whether there has been an “abandonment” in what are presumed by the committee to be those rare circumstances in which “abandonment” is not plainly apparent.

RULE 4,161. EFFECT OF APPEAL ON BENEFITS AWARDED

(a) Benefits Unaffected By Appeal. Benefits ordered paid and not certified by appellant (or cross-appellant) to be affected by appeal under Rule 4.160(a) of these rules are governed by Section 440.20 Florida Statutes.

(b) Benefits Affected By Appeal. Benefits ordered paid which are certified under Rule 4.160(a) of these rules by appellant (or cross-appellant) as being affected by the appeal may be withheld pending outcome of the appeal under the authority of Section 440.20 Florida Statutes unless the appellant’s (or cross-appellant’s) challenge to the award of any such benefits so certified is deemed abandoned as provided by subsection (c) of this rule.

(c) Abandonment. Any challenge to benefits certified as affected by appeal under Rule 4.160(a) of these rules, but not raised, argued or encompassed in appellant’s (or cross-appellant’s) initial brief, shall be deemed abandoned by the appellant (or cross-appellant).

(d) Payment of Benefits Where Challenge Is Abandoned. Where any certification affecting benefits challenged on appeal under Rule 4.160(a) of these rules is deemed abandoned under sub-section (c) of this rule, benefits no longer affected by the appeal are payable and due within thirty (30) days of service of the initial brief deemed to have abandoned the challenge to benefits previously certified as affected by appeal, together with interest, as provided under Section 440.20, Florida Statutes, from the date of entry of the Deputy’s order making the award.

(e) Payment of Benefits After Unsuccessful Appeal. Benefits ordered paid which have been certified as being affected by appeal pursuant to Rule 4.160(a) of these rules and withheld pending outcome of appeal become due and payable if appeal is unsuccessful with respect to any such withheld benefits, within thirty (30) days of the issuance of the District Court’s mandate unless stay is obtained, pursuant to review sought with the Florida Supreme Court, in which case benefits become due, if such review is unsuccessful, within thirty (30) days of the Supreme Court’s final disposition of the cause, together with interest as provided under Section 440.20 Florida Statutes, from the date of entry of the Deputy’s order making the award.

Comment — This comprehensive new rule is intended by the rules committee to clarify within the context of existing authority the status of benefits ordered paid where an appeal is taken, which may or may not have an impact on all benefits awarded, from inception through final disposition of appeal.

The rule codifies authority to the effect benefits certified as being challenged on appeal may be withheld pending disposition on appeal, provided, however, the appellant may either relinquish or forfeit this privilege by abandoning a contemplated challenge to benefits awarded. There are two consequences of an abandonment during the pendency of an appeal with respect to any benefit previously certified as affected by appeal. First, payment of the previously challenged award becomes due under the time table specified under subsection (d) of this rule. The second consequence is jurisdiction reverts back to the Deputy Commissioner under Rule 4.200(b)(3) (formerly Rule 20) over any matter no longer encompassed by an appeal where jurisdiction would otherwise have been suspended by operation of the certification previously in force.

Sub-section (c) defines abandonment. Counsel are encouraged to utilize this procedure [which complements the “certification” process of Rule 4.160(a) (formerly Rule 16)] as a means of withdrawing an issue from contention and of expediting payment of benefits during the pendency of an appeal where further reflection (often aided by study of the record on appeal) suggests that an award originally thought to be erroneous may not be reversible as a practical matter.

The language “not raised, argued or encompassed” in appellant’s initial brief is broad so as to avoid dispute in cases where an award may be “encompassed” by an argument (such as the award of an expert witness fee in appeal directed to the threshold issue of “course of employment”). Obviously, the better practice is to be as explicit as practicable so as to avoid dispute. The Deputy does retain jurisdiction under Rule 4.160(a) to make a determination as to whether or not there has been an abandonment, in those unique instances in which the parties cannot otherwise agree.

Though not specifically encompassed by the rule, it is the committee’s belief that a full voluntary dismissal of appeal, implicitly permissible in workers’ compensation appeals, would, with respect to status and time for payment of benefit withheld pending appeal, operate effectively as an “abandonment” under this rule.

Subsection (d) clarifies the time within which payments are to be made following either an abandonment or unsuccessful disposition of appeal. As in all other cases, enforcement in case of default is governed by section 440.24, Florida Statutes.

RULE 4.180 RECORD ON APPEAL

(a) WHAT CONSTITUTES.

(1) The record on appeal shall contain the claim, notice to controvert, pretrial order and stipulation, transcript of proceedings before the Deputy, and order on appeal. The record shall also contain, by designation of a party, such other orders and pleadings as are necessary for the Court’s determination of the appeal. Only such exhibits, depositions and physical evidence as are introduced into evidence before the Deputy, designated by the parties for inclusion, and necessary for the Court’s determination of the appeal shall be included. If the order appealed requires consideration by the Court of matters which have not been admitted as evidence, such material as is necessary to the Court’s determination shall be included by designation. Evidence proffered, but not admitted into evidence by the Deputy, shall not be included in the record unless its admissibility is an issue on appeal and it is designated for inclusion by one of the parties. No paperi-document? exhibit or administrative filing not introduced into evidence and pertinent to-the issues on appeal shall be included in the record.

(f) RELIEF FROM COSTS.

(1) An appellant may be relieved from payment of any necessary filing fee by filing a Verified Petition of Indigency for approval as provided in Section 57.081(1), Florida Statutes.

(2) An appellant may be relieved in part or in whole from the costs for the preparation of the record on appeal, and-may be reimbursed--the costs of filing previously made-pursuant to the provisions-of ■ Rule 16(a), if within fifteen (15) days from after the date notice of the estimated costs for the preparation is served, he files with the Deputy a verified petition to be relieved of costs. The verified petition for record costs shall contain a detailed and sworn statement of all his assets, liabilities, and income. Appellant’s attorney or the appellant, if not represented by an attorney, shall include as a part of the verified petition for record costs an affidavit or affirmation that in his opinion the notice of appeal was filed in good faith and that the issues — to—be-presented- on appeal constitutes a there is a probable basis for the District Court to find reversible error. A copy of the verified petition for record costs shall be served upon the Division in Tallahassee and all other interested parties, and the Clerk. The Deputy shall promptly conduct a hearing on the verified petition giving at least fifteen (15) days notice to the appellant, the Division, and all other interested parties, which shall all be parties to the proceeding. The Deputy may enter an order without such hearing if no objection is filed by the Division or an interested party within twelve (12) days from the date the verified petition for record costs is filed. Said proceedings shall be conducted in accordance with the Workers’ Compensation Rules of Procedure to the extent applicable. The sixty-day period for the preparation and filing of the record on appeal and, in the case of a denial of said petition, the fifteen-day period for depositing the amount of record costs required, will then commence when the Deputy’s order thereon has become final (with an information copy provided to the Division and the District Court). Upon a finding-by-the Deputy that -the appellant may-be-relieved-in-part or-in-whole from the costs for-the-pr-epar-ation of the-record on appeal, the Division shall reimburse the appellant the amount of the filing fee required by Rule 16(a)- |n the event an insolvency petition is granted, the Deputy may provide for payment of the record costs from the Workers’ Compensation Administration Trust Fund pending final disposition of the costs of appeal by a court or Deputy Commissioner.

Comment — 1984 Revision: 18(a)(1) Redundant language deleted. Earlier language in 18(a)(1) discusses what is to be included in the record.

18(f)(1) (New) Conforms workers’ compensation to general appellate practice, implementing section 47.081(1), Florida Statutes. 18(f)(d) (Newly Numbered) Clarifies language in conformity with Florida Workers’ Compensation Rule of Procedure 18(f)(1) to distinguish between filing fees and record costs.

RULE 4.210 JURISDICTION; PROPOSED SETTLEMENT; MOTION FOR REMAND; APPELLATE COSTS

(a) JURISDICTION. Upon application to the District Court for review of an order of a Deputy, jurisdiction of the cause to the extent of the issues raised is vested in the District Court and the Deputy shall have no further jurisdiction, in respect thereof, save with respect to preparation of the record on appeal, cost of said preparation, and extension of time for filing of same, and with respect to a stipulation, settlement or correction of clerical errors in the order appealed prior to filing of the record, or as provided by these rules. A party may, however, file a motion with the District Court requesting remand of the cause to the Deputy for further proceedings.

(b) PROPOSED SETTLEMENT. Upon stipulation of the parties, the Deputy may take testimony or cause to be investigated a proposal for settlement of all or any part of the cause before the District Court on review with the objective of determining whether or not upon remand, he would approve such settlement proposal. An order approving such settlement which is entered while the cause is pending appellate review, after filing of the record and prior to the remand of the cause to the Deputy¿ shall be null and void.

(c) MOTION FOR REMAND. Upon a joint motion of the parties stating that a proposed settlement agreement has been reached, the District Court may remand the cause to the Deputy for consideration of the proposed settlement and the entry of an appropriate order, within the time provided by the District Court.

(d) APPELLATE COSTS. Any order approving a settlement shall make appropriate provisions for assessment and recovery ' of appellate costs.

Comment — 21(d) (New) Places burden on deputy commissioner to determine any outstanding appellate cost issues (whether born by a party, or by the Division of Workers’ Compensation) at time of settlement.

RULE 4.250 MOTION FOR REHEARING.

A Motion for Rehearing or for Clarification of decision may only be filed only within fifteen (15) days of the decision unless the time is extended by order of the Court applied for within the fifteen (15) day period. The motion shall state with particularity the points which the Court has overlooked or misapprehended and shall not re-argue the merits of the Court’s order. A reply may be served within ten (10) days of service of the motion. The time allowed for filing a notice or petition in or to the Supreme Court of Florida is tolled pending final disposition of a Motion for Rehearing or for Clarification hereunder.

Comment — 1984 Revision: Clarified existing law and conforms Florida Workers’ Compensation Rules of Procedure with Florida Rules of Appellate Procedure 9.330 and 9.300.

The amendments will be effective 12:01 a.m., January 1, 1985.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH

      . The proposed amendment to rule 11, regarding prosecution of a claim before a deputy commissioner, would provide that a claimant’s second notice of voluntary dismissal is with prejudice and would shorten the two-year dismissal period for lack of prosecution to one year.

      . The committee’s comments are included for explanation and guidance only and are not adopted as an official part of the rules.


text:
    THE FLORIDA BAR RE EMERGENCY AMENDMENTS TO FLORIDA RULES OF PROBATE AND GUARDIANSHIP PROCEDURE.
    No. 66159.
    Supreme Court of Florida.
    Nov. 30, 1984.
    Rohan Kelley, Fort Lauderdale, and Jean E.C. Coker, Jacksonville, Co-chairmen, Probate and Guardianship Rules Committee, for petitioner.
    William S. Belcher, St. Petersburg, Regent and Attorney for Academy of Florida Probate and Trust Litigation Attorneys, Inc., and Rohan Kelley, Fort Lauderdale, Chancellor for Academy of Florida Probate and Trust Litigation Attorneys, Inc., ami-cus curiae.
   PER CURIAM.

We recently approved numerous changes to the rules of probate and guardianship procedure. The Florida Bar in re Amendment to Rules — Probate and Guardianship, 458 So.2d 1079 (Fla.1984). The probate and guardianship rules committee has now filed an emergency petition regarding one matter inadvertently omitted previously and another matter which the committee has reconsidered. We adopt the recommendations of the committee and enter the following orders.

Those portions of chapters 731 through 735, Florida Statutes (Florida Probate Code), chapter 744, Florida Statutes (Florida Guardianship Law), chapter 737, Florida Statutes (pertaining to trust administration), and chapter 738, Florida Statutes (pertaining to principal and income) which are procedural are hereby adopted as temporary rules of procedure of this Court. The probate and guardianship rules committee is directed to study these temporary rules and to incorporate recommendations regarding them into the next quadrennial review of the probate and guardianship rules. These temporary rules of procedure will be effective immediately upon the filing of this opinion.

Paragraph (a) of rule 5.340 and the committee notes and rule history of rule 5.340, as set out in our opinion of September 13, 1984, are amended to read as follows, effective 12:01 a.m., January 1, 1985:

(a) Contents and filing. The personal representative shall file an inventory of the estate as required by law. within 60 days after issuance of letters. The inventory shall list the estate with reasonable detail and include for each listed item its estimated fair market value at the date of the decedent’s death. Real property appearing to be homestead property shall be listed and so designated.
* * * ⅜ * *
Committee Notes
Inventories are still required to be filed. Once filed, however, they are subject to the confidentiality provisions found in subsection 733.604(4), Florida Statutes (Supp.1984).
Constitutional homestead real property is not necessarily a probatable asset (See Basic Practice Under Florida Probate Code, 2d Ed. (1981), pp. 718-721). Disclosure on the inventory of real property appearing to be constitutional homestead property informs interested persons of the homestead issue.
Interested persons are entitled to reasonable information about estate proceedings on proper request, including a copy of the inventory, an opportunity to examine appraisals, and other information pertinent to their interests in the estate. The personal representative must also send serve a copy of the inventory to on the Florida Department of Revenue. § 193.052, Fla.Stat. (Supp. 1984).
Rule History
1980 Revision: Eliminated the time limit in requesting a copy of the inventory by an interested person or in furnishing it by the personal representative.
1984 (First) Revision: Extensive changes. Committee notes revised.
1984 (Second) Revision: Paragraph (a) modified to clarify or re-insert continued filing requirement for inventory.

We refuse the committee’s request to republish the entire current set of the probate and guardianship rules merely to insert these changes.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.