author: BENTON, C.J. VAN NORTWICK, J.,

text:
    Laurie BASILE and Leanne Krajewski, Appellants, v. James Michael ALDRICH, In re Estate of Ann Dunn Aldrich, Appellee.
    No. 1D10-3110.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Rehearing Denied Oct. 6, 2011.

      Jonathan D. Kaney, III of Kaney & Olivari, P.L., Ormond Beach, for Appellants.
    James J. Taylor, Jr. of Taylor & Taylor P.A., Keystone Heights, for Appellee.
   BENTON, C.J.

Laurie Basile and Leanne Krajewski, nieces of the late Ann Dunn Aldrich, seek review of the summary final judgment entered in favor of James Michael Aldrich, Ann’s brother and their uncle. We hold that, where a will fails to dispose of all of a decedent’s property (Ann’s will has no residuary clause), “partial intestacy” results; and that property Ann owned at the time of her death not disposed of by her will passes to her heirs, in the manner prescribed by sections 732.101-.111, Florida Statutes (2009). Accordingly, we reverse and remand.

I.

On April 5, 2004, Ms. Aldrich wrote her will on an “E-Z Legal Form.” In Article III, entitled “Bequests,” just after the form’s pre-printed language “directing] that after payment of all my just debts, my property be bequeathed in the manner following,” she hand wrote instructions directing that all of the following “possessions listed” go to her sister, Mary Jane Eaton:

—House, contents, lot at 150 SW Garden Street, Keystone Heights FL 32656
—Fidelity Rollover IRA 162-583405 (800-544-6565)
—United Defense Life Insurance (800-247-2196)
—Automobile Chevy Tracker, 2CNBE 13c916952909
—All bank accounts at M & S Bank 2226448, 264679, 0900020314 (352-473-7275).

Ann also wrote: “If Mary Jane Eaton dies before I do, I leave all listed to James Michael Aldrich, 2250 S. Palmetto 114 S Daytona FL 32119.” Containing no other distributive provisions, the will was duly signed and witnessed.

Three years later, Ms. Eaton did die before Ann, becoming her benefactor instead of her beneficiary. Ms. Eaton left cash and land in Putnam County to Ms. Aldrich, who deposited the cash she inherited from Ms. Eaton in an account she opened for the purpose with Fidelity Investments. On October 9, 2009, Ann Dunn Aldrich herself passed away, never having revised her will to dispose of the inheritance she had received from her sister.

Mr. Aldrich was appointed personal representative of Ann’s estate. After a court order authorized him to sell the Putnam County real property, he filed a petition for construction of the will and initiated an adversary proceeding in the probate case. The petition asked the court to decide who should receive the proceeds of the sale of the real property in Putnam County, and the cash Ann had inherited from Ms. Eaton and put in the Fidelity Investments account.

In his petition, Mr. Aldrich took the position that the most reasonable and appropriate construction of the will was that Ann intended her entire estate, including what she had inherited from her sister, to pass to him, citing (1) “[t]he will itself, which names only decedent’s predeceased sister, Ms. Eaton, and [Mr. Aldrich] as beneficiaries, and which devised all of the property then owned by decedent”; (2) “[s]ection 732.6005(2), [Florida Statutes], which provides that a will is to be construed to pass all property that a testator owns at death, including property acquired after the execution of the will”; and (3) “[t]he legal presumption that in making a will a testator intended to dispose of his or her entire estate, as well as the legal presumption against a construction that results in partial intestacy.”

The petition did concede the possibility of another construction of the will, suggesting as an alternative that “by her will decedent intended to dispose of only the property specifically listed in the will, and not property that she may subsequently have acquired.” Under the latter scenario, the petition recognized, the trial court would be required “to treat decedent as having died intestate as to the after-acquired property,” and alleged that, in that event, the after-acquired property would pass one-half to Mr. Aldrich, one-quarter to Ms. Basile, and one-quarter to Ms. Kra-jewski. All agree that Mr. Aldrich is entitled to the property actually listed in the will.

The parties filed motions for summary judgment. The nieces, Ms. Basile and Ms. Krajewski, argued that, without any general devises and in the absence of a residuary clause, Ann’s will contained no mechanism to dispose of the after-acquired property or any other property not mentioned in the will, so that she had died intestate as to the Putnam County property and the cash in the non-IRA Fidelity Investments account. The trial court rejected this argument on the purported authority of section 732.6005(2), and entered summary final judgment in favor of Mr. Aldrich. But section 732.6005(2) does not control the question. Because the disputed property was not alluded to in the will, it does not matter whether it was acquired before or after the will was executed.

II.

At one time — under the Florida statute of wills of 1828, in force until the Revised Statutes took effect on June 13, 1892 — a will was ineffective to devise Florida real estate that the testator had no interest in at the time the will was executed. See Frazier v. Boggs, 37 Fla. 307, 20 So. 245, 248 (1896). Since June 13, 1892, however, a will containing a residuary clause has been effective to transfer after-acquired property. See DePass v. Kan. Masonic Home, 132 Fla. 455, 181 So. 410, 413 (1938). Section 5459, Compiled General Laws of Florida (1927) provided:

Construction of wills.-Every general or residuary devise or bequest in a will shall be construed to apply to the property owned by the testator at the time of his death, unless restricted in the will to that owned by him at the time of the execution of the will.

To like effect, the Legislature, in enacting the Probate Act of 1933, section 5477(2)(b), Compiled General Laws of Florida (Supp. 1933) (subsequently renumbered section 731.05(2)), provided:

A will becomes effective at the time of the death of the testator and all property, real or personal, acquired by the testator after making his will is transmissible under general expressions in the will showing such to be the intention of the testator. Every will containing a residuary clause shall transmit after-acquired property, unless the testator expressly states in his will that such is not his intention.

The supreme court explained in In re Vail’s Estate, 67 So.2d 665, 670 (Fla.1953), that the primary purpose of this section “was to permit transmissal of after-acquired property by will rather than by intestacy.”

In 1974, the Florida Legislature adopted the Uniform Probate Code. As part of this enactment, section 781.05 was repealed, and section 732.602 was enacted. Ch. 74-106, § 1, at 227 and § 3, at 319, Laws of Fla. Newly enacted section 732.602 provided:

Construction that will passes all property.-A will is construed to pass all property that the testator owns at his death, including property acquired after the execution of the will.[]

§ 732.602, Fla. Stat. (1974 Supp.). Contrary to Mr. Aldrich’s contention, our holding today does not improperly reinsert (by implication) language from section 5477(2) of the Probate Act of 1933 that the Legislature wanted to root out in 1974 to effect a change.

For one thing, the 1974 amendment, effected by Chapter 74-106, § 1, at 227, Laws of Florida, was largely housecleaning not intended to effect substantive changes to section 5477(2) of the Probate Act of 1933. According to Henry P. Trawick, Jr., Trawick’s Redfeam Wills and Administration in Florida, § 1.2 (2010-11 ed.), “[t]he Legislature created the Florida Uniform Probate Code Study Commission to consider adoption of the Uniform Probate Code. With little debate the commissioners decided that the Florida Probate Act of 1933 was generally satisfactory so the Commission placed the existing statutes in the format of the Uniform Probate Code insofar as possible. This had the effect of preserving considerable decisional law and of avoiding a number of significant and untested changes.”

In 1975, former section 732.602 was repealed, and section 732.6005 was created. Ch. 75-220, §§ 33, 35, at 519-20, Laws, of Fla. Except for “genderfication,” see Chapter 97-102, § 965, at 1342, Laws of Florida, and Chapter 2001-226, § 49, at 2004, Laws of Florida, the original version of section 732.6005 has never been amended. State, Dept. of Children & Family Servs. v. L.G., 801 So.2d 1047, 1052 (Fla. 1st DCA 2001). Section 732.6005, Florida Statutes (2009), provides:

(1) The intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions. The rules of construction expressed in this part shall apply unless a contrary intention is indicated by the will.[]
(2) Subject to the foregoing, a will is construed to pass all property which the testator owns at death, including property acquired after the execution of the will.

(Emphasis supplied.) Section 732.6005 has always been codified under Part VI of the Florida Probate Code, the part entitled “rules of construction.”

III.

Only subsection (1) of section 732.6005 applies to the dispute here: If discernible from the will, the testator’s intent must be given effect, unless doing so would be illegal or otherwise contrary to public policy. See In re Estate of Tolin, 622 So.2d 988, 990 (Fla.1993); First Union Nat’l Bank of Fla., N.A. v. Frumkin, 659 So.2d 463, 464 (Fla. 3d DCA 1995); Rogers v. Atl. Nat’l Bank of Jacksonville, 371 So.2d 174, 176 (Fla. 1st DCA 1979). Subsection (2) of section 732.6005 does not apply because it is expressly “[s]ubject to” subsection (1), which provides: “The intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions.” § 732.6005(1), Fla. Stat. (2009). The language of Ann’s will is unambiguous and its intent is clear.

Ms. Aldrich devised her house and lot in Keystone Heights, and bequeathed its contents, together with other personal property that the will identifies with painstaking specificity. Her will plainly evinces an intent to dispose of each particular item of property the will names. Equally plainly, the will manifests no intent to dispose of the disputed property, property the will does not allude to in any way. Among such property not so much as hinted at is the real property in Putnam County. Nor does the will, which lists bank accounts by specifying the account numbers, and a “Fidelity Rollover IRA 162-583405,” make mention of cash in the other (non-IRA) Fidelity Investments account.

Insofar as it delimits the parts of her estate on which it operates, the will is fairly susceptible of only one interpretation. The “intention of the testator, as expressed in his will, shall prevail over all other considerations, if consistent with the principles of law.” Lines v. Darden, 5 Fla. 51, 68 (1853) (emphasis supplied). “To the greatest extent possible, courts and personal representatives are obligated to hon- or the testator’s intent in conformity with the contents of the will.” Espinosa v. Sparber, Shevin, Shapo, Rosen & Heil-bronner, 612 So.2d 1378, 1380 (Fla.1993) (emphasis supplied) (citing In re Blocks’ Estate, 143 Fla. 163, 196 So. 410 (1940)). See also Diana v. Bentsen, 677 So.2d 1374, 1376 (Fla. 1st DCA 1996) (“The purpose of construing a will is to give effect to the decedent’s intention as expressed in the will”) (emphasis supplied).

In order for property, after-acquired or not, to pass under a will, the will must dispose of it in some manner. Whether acquired before, after, or at the time a will is executed, assets covered by no provision of the will — specific, general, or residuary — are not disposed of under the will. Ms. Aldrich’s will does not say the first thing about real property in Putnam County or a non-IRA account at Fidelity Investments. The will cannot, therefore, dispose of these items, not because they are after-acquired, but because no provision of the will covers them.

IV.

A will is not subject to judicial revision merely because it does not dispose of all of the testator’s property. Given the specificity of the devise and bequests in Ann Dunn Aldrich’s will, including the house address, account numbers and a vehicle identification number, invocation of section 732.6005(2) as a basis for construing the will to dispose of the Putnam County property and an account not identified in the will is unwarranted. Synec-doche is a rhetorical device, not a judicial doctrine. “[I]f a will disposes of only one small specific item out of a large and valuable estate, it would be absurd to hold that the devisee of that one small item is entitled to the remainder of the estate.” Matter of Estate of Allen, 150 Mich.App. 413, 388 N.W.2d 705, 707 (1986). The same logic applies in the present case.

Those opposing partial intestacy in In re Estate of Barker, 448 So.2d 28 (Fla. 1st DCA 1984), argued that the testatrix had evinced her intent to exclude certain of her heirs from taking anything more than the nominal (one-dollar) bequests she had made to them. (Ms. Aldrich’s will reflects nothing of the kind regarding any of her heirs.) The Barker court’s answer was: “ ‘In order to cut off an heir’s right to succession a testator must do more than merely evince an intention that the heir shall not share in the estate — he must make a valid disposition of his property.’ ” Id. at 31 (quoting In re Estate of Levy, 196 So.2d 225, 229 (Fla. 3d DCA 1967)). Ms. Aldrich’s will made no “valid disposition” of the Putnam County realty or of the non-IRA account at Fidelity Investments.

V.

A testator may choose to dispose of only a portion of his or her estate by will, allowing the balance to descend under the laws of intestate succession. See § 732.101(1), Fla. Stat. (2009); Barker, 448 So.2d at 31; In re Stephan’s Estate, 142 Fla. 88, 194 So. 343, 344 (1940). See also § 733.805, Fla. Stat. (2009) (setting forth the order in which funds or property designated by the will abate, beginning with property passing by intestacy). While the will does not dispose of all the property Ann Dunn Aldrich owned at her death, this circumstance is hardly unique to her or her estate and does not contravene any rule of law or public policy. Nor does the will reflect any mistake on her part.

The provisions of section 732.6005 plainly do require that the specific bequest of the contents of the Keystone Heights house be “construed to pass all” such contents which Ms. Aldrich owned at the time of her death “including property [any contents of the house] acquired after the execution of the will.” § 732.6005(2), Fla. Stat. (2009). Similarly, the will should be “construed to pass all” the money at the time of her death in each of the bank accounts the will specifies, including money deposited in those accounts “after the execution of the will.” Id. We reject the separate opinion’s perplexing contention that in “effect, the majority opinion determines that section 732.6005 does not apply to wills that do not contain general devises or a residuary clause.” Post, p. 15.

But no residuary clause nor any other “intention of the testator as expressed in the will” encompasses the Putnam County realty or any personalty aside from the subjects of the specific bequests. § 732.6005(1), Fla. Stat. (2009). The will contains no provision that would “necessarily indicate that she did not wish her residuary estate to be distributed to her legal heirs as intestate property.” Barker, 448 So.2d at 31. It does not matter whether or not Ann Dunn Aldrich owned real property in Putnam County or held cash in a non-IRA account at Fidelity Investments at the time she executed her will, or acquired the real property and deposited the cash afterwards. In either event, the will as written and executed failed to dispose of those unmentioned assets.

VI.

Section 732.6005(2) is, after all, a rule of construction. Rules of construction are to be resorted to only if the testator’s intent cannot be ascertained from the will itself. See, e.g., Barley v. Barcus, 877 So.2d 42, 44 (Fla. 5th DCA 2004); First Natl Bank of Fla. v. Moffett, 479 So.2d 312, 313 (Fla. 5th DCA 1985); In re Estate of Lesher, 365 So.2d 815, 817 (Fla. 1st DCA 1979). The presumption against partial intestacy is designed to resolve ambiguities where they exist. The presumption should not be applied to create ambiguities in a will where none would otherwise exist.

In the present case, Ann’s will makes her intent when she executed it crystal clear. “There are simply no conflicting provisions of the ... will [in any way concerning the disputed property] which require construction.” Barker, 448 So.2d at 31. “ ‘If the terms of a will are such as to permit two constructions, one of which results in intestacy and the other of which leads to a valid testamentary disposition, the construction is preferred which will prevent intestacy.’ In re Gregory’s Estate, 70 So.2d 903, 907 (Fla.1954) (quoting Redfearn on Wills and Administration of Estate in Florida, 2d ed., p. 192).” In re Estate of McGahee, 550 So.2d 83, 87 (Fla. 1st DCA 1989) (emphasis supplied). The terms of Ms. Aldrich’s will do not dispose of any property other than the property the will specifically identifies, and cannot fairly be construed otherwise.

VII.

In an abundance of caution, we certify the following question as a question of great public importance within the meaning of Article V, section 3(b)(4) of the Florida Constitution, and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

WHETHER SECTION 732.6005, FLORIDA STATUTES (2004), REQUIRES CONSTRUING A WILL AS DISPOSING OF PROPERTY NOT NAMED OR IN ANY WAY DESCRIBED IN THE WILL, DESPITE THE ABSENCE OF ANY RESIDUARY CLAUSE, OR ANY OTHER CLAUSE DISPOSING OF THE PROPERTY, WHERE THE DECEDENT ACQUIRED THE PROPERTY IN QUESTION AFTER THE WILL WAS EXECUTED?

We reverse the order granting summary judgment to the appellee, and remand with directions that summary judgment be entered for appellants, and for further proceedings consistent with this opinion.

THOMAS, J., Concurs; VAN NORTWICK, J., Concurs in Part and Dissents in Part with Opinion.

VAN NORTWICK, J.,

concurring in part and dissenting in part.

I believe that the trial court correctly interpreted and applied section 732.6005(2), Florida Statutes (2004), in a manner consistent with legislative intent. Under this reading of the statute, all of the property the decedent acquired after she had executed her will in 2004 would pass under the will to appellee, the sole remaining beneficiary named in the will. Accordingly, I respectfully dissent to all but Part YII of the majority opinion. I concur in the certification of the question in Part VII.

Section 782.6005 falls under Part VI of the Florida Probate Code, entitled “Rules of Construction.” In its entirety, it reads as follows:

732.6005 Rules of construction and intention.—
(1) The intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions. The rules of construction expressed in this part shall apply unless a contrary intention is indicated by the will.
(2) Subject to the foregoing, a will is construed to pass all property which the testator owns at death, including property acquired after the execution of the will.

In effect, the majority opinion determines that section 732.6005 does not apply to wills that do not contain general devises or a residuary clause. The majority concludes that, since Ms. Aldrich’s will did not dispose all of her property, she intended partial intestacy. However, the unambiguous language of section 732.6005 does not support this conclusion.

Former section 731.05, Florida Statutes (1973), evolved from the Florida Legislature’s desire to remedy the common-law rule that after-acquired property did not pass by will. See DePass v. Kansas Masonic Home, 132 Fla. 455, 181 So. 410, 412-13 (1938). The remedy was included in the Revised Statutes of 1892, and, by the time of DePass, was expressed in section 5477(2), Florida Statutes (Supp.1934), which stated:

[A] will becomes effective at the time of the death of the testator and all property, real or personal, acquired by the testator after making his will is transmissible under general expressions in the will showing such to be the intention of the testator. Every will containing a residuary clause shall transmit after-acquired property, unless the testator expressly states in his will that such is not his intention.

Id. at 413 (emphasis added). This portion of DePass was later cited in In re Vail’s Estate, 67 So.2d 665 (Fla.1953), in which, in dicta “for clarity,” the Florida Supreme Court quoted the second passage of section 5477(2), regarding after-acquired property, and noted that “this language is identical with the last sentence of present F.S.A. § 731.05(2).” Id. at 670. It also observed that the “primary purpose” of section 5477(2) “was to permit transmissal [sic] of after-acquired property by will rather than by intestacy, and the expression of contrary intention [of the testator] contemplated by the statute is therefore an expression that after-acquired property shall not pass under the will.” Id. (emphasis in original).

As enunciated by this court in In re Estate of McGahee, 550 So.2d 83 (Fla. 1st DCA 1989): “The primary goal of the law of wills, and the polestar guiding the rules of will construction, is to effectuate the manifest intention of the testator.” Id. at 85 (citing Marshall v. Hewett, 156 Fla. 645, 24 So.2d 1 (1945), and In re Estate of Lenahan, 511 So.2d 365 (Fla. 1st DCA 1987)). As earlier emphasized by the supreme court, “[t]he law of wills is calculated to avoid speculation as to the testator’s intent and to concentrate upon what he said rather than what he might, or should, have wanted to say.” In re Pratt’s Estate, 88 So.2d 499, 504 (Fla.1956). Unquestionably, both section 732.6005 and its predecessor statutes embody this salutary purpose.

Furthermore, former section 731.05(2) and present section 732.6005(2) share an additional goal in will construction directed toward effectuating the intent of the testator, that being “a presumption against partial intestacy and allowing] a will to pass after-acquired property, absent a contrary intent.” Henry A. Fenn & Edward F. Koren, The 1971 Florida Probate Code — A Marriage of Convenience, 27 U. Fla. L. Rev. 1, 32 (1974) (footnote omitted). Accord In re Vail’s Estate, 67 So.2d at 670; Butcher v. Estate of Butcher, 437 So.2d 788, 789 (Fla. 2d DCA 1983) (observing that disposition under a will is favored over intestacy). In their article reviewing the expansive revision of the Florida Probate Code in 1974, the commentators were referring to then section 732.602, Florida Statutes (1974) — the precursor to section 732.6005 — that they described as “simply providfing]” that “ ‘[a] will is construed to pass all property that the testator owns at his death including property acquired after the execution of the will.’ ” Fenn & Ko-ren, 27 U. Fla. L. Rev. at 32 (quoting section 732.602, Florida Statutes (1974)). But, critical to the point raised on appeal, it was specifically noted in the article that while section 731.05(2), Florida Statutes (1973), was similar to section 732.602, Florida Statutes (1974), it “applifed] only to wills containing a residuary clause.” Id. at 32 n. 212 (emphasis added). In the newly created section 732.602, the legislature omitted the “residuary clause” language, and it is also absent in section 732.6005(2). As other recent commentators have observed of section 732.6005(2):

A will is construed to pass all property a testator owns at death, including property acquired after the execution of the will.fn.1]
Disposition under a will is favored over intestacy.[n.2]
Accordingly, if a will contains no residuary clause, or if a doubt exists about whether a will is intended to dispose of all assets the testator owned at the time of death, the will will be construed to make such disposition.

See 12 Abraham M. Mora, Shelly Wald, & Lorna J. Scharlacken, Florida Estate Planning § 18:41 (2010-11 ed.) (bracketed footnotes citing, respectively, section 732.6005(2), Florida Statutes, and Butcher v. Estate of Butcher, 437 So.2d 788 (Fla. 2d DCA 1983)). The majority’s holding, that section 732.6005(2) requires a residuary clause to pass after-acquired property under a will, simply reinserts through implication language that was expressly omitted by the legislature in 1974.

It is a cardinal rule of statutory construction that when an amendment to a statute omits words, courts must presume that the legislature intended the statute to have a different meaning than before the amendment. See Capella v. City of Gainesville, 2,11 So.2d 658, 660 (Fla.1979). More importantly, “when the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Knowles v. Beverly Enterprises-Fla., Inc., 898 So.2d 1, 5 (Fla.2004) (citing Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). By its clear and unambiguous terms, “unless a contrary intention is indicated in the will,” section 732.6005(2) is “subject to” only the limitations expressed in subsection (1), those being “the intention of the testator as expressed in the will,” and the “rules of construction” contained in Part VI of chapter 732 (i.e., section 732.601 (“Simultaneous Death Law”), section 732.603 (“Antilapse”), section 732.604 (“Failure of testamentary provision”), section 732.605 (“Change in securities”), section 732.606 (“Nonademption of specific devises”), section 732.607 (“Exercise of power of appointment”), section 732.608 (“Construction of generic terms”) and section 732.609 (“Ademption by satisfaction”)). Otherwise, section 732.6005(2) mandates that after-acquired property passes under the will, notwithstanding the absence of a residuary clause. Because none of the “rules of construction” expressed in Part VI apply in this case, the sole consideration relevant to resolving the issue at hand is the decedent’s intent as expressed in her will.

The majority opinion relies on the only case that has directly addressed section 732.6005(2), In re Estate of Barker, 448 So.2d 28 (Fla. 1st DCA 1984). However, Barker involved two wills, the second of which expressly revoked all prior wills made by the testatrix, and also omitted the residuary clause that was contained in the first will. The existing residual estate was worth approximately $50,000 in real estate and $37,000 in personalty, and one of the former beneficiaries of that residual estate petitioned to have established the first will to prevent the distribution of the residual estate under the second will by intestacy to eleven heirs. The trial court found that the second will effectively revoked the first one and that no legal theory operated to revive the residuary clause of the first will. In affirming, this court recognized the presumption that the testatrix understood and approved her will, and ruled that “[njothing in the law precludes a testator from disposing of only a portion of his estate by will and allowing the balance to be distributed according to the law of intestate succession.” Id. at 31. Significantly, however, this court also held, “[fjurther, appellant’s reliance upon Section 732.6005(2), Florida Statutes, dealing with testamentary intent regarding after-acquired property is misplaced. That section has no application to the case at bar.” Id. at 32.

Here, the trial court was asked to interpret a will that devised to the decedent’s sister specific items with instructions that, should the sister predecease her, all of the items listed should pass to her brother. Although there is nothing on the face of the will indicating that the items so devised consisted of the decedent’s entire estate, there is also nothing on the face of the will indicating the decedent’s intent that anyone other than either the decedent’s sister or her brother receive anything under the will. In short, there was no “expression of contrary intention” by the decedent that the after-acquired property “shall not pass under the will.” In re Vail’s Estate, 67 So.2d at 670 (emphasis in original). Given that clear intent, and in the absence of the application of any of the other rules of construction contained in Part VI of chapter 732, the property acquired by the decedent following the death of her sister would, by virtue of section 732.6005(2), pass under the will to appel-lee, and not according to the rules of intestacy to be divided between appellants and appellee.

The trial court’s construction of the decedent’s will is consistent with the meaning and intent of section 732.6005(2). Accordingly, the property acquired by the decedent from her sister following the execution of the decedent’s will passed by the decedent’s will according to the decedent’s intent as expressed in her will. Section 732.6005(2) is wholly dependent on the testator’s intent as expressed in the will, and this case presents no circumstances that cannot be resolved by an application of the plain language of the statute to the decedent’s intent. I believe that the summary final judgment should be affirmed.

      . When she died, Ann left neither spouse nor child. Nor did any other sibling or any other offspring of predeceased siblings survive her.

      . The Uniform Probate Code was approved by the National Conference of Commissioners on Uniform State Laws, and by the American Bar Association, in August of 1969. See Unif. Probate Code, Historical Notes, 8 U.L.A. 1 (1998). Section 2-604 of the 1969 Uniform Probate Code provided: "A will is construed to pass all property which the testator owns at his death including property acquired after the execution of the will.” This provision was later moved to section 2-602 of the Uniform Probate Code, and amended to state: "A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator’s death.” Unif. Probate Code § 2-602, 8 U.L.A. 164 (1998). The Comment to this section states the purpose is "to assure that, for example, a residuary clause in a will not only passes property owned at death that is not otherwise devised, even though the property was acquired by the testator after the will was executed, but also passes property acquired by a testator’s estate after his or her death.” Id.

      . Section 732.6005(1), Florida Statutes (2009) is based on and virtually identical to section 2-603 of the 1969 Uniform Probate Code.

      . “A specific legacy is a gift by will of property which is particularly designated and which is to be satisfied only by the receipt of the particular property described.” In re Estate of Udell, 482 So.2d 458, 460 (Fla. 4th DCA 1986) (quoting In re Estate of Parker, 110 So.2d 498, 500 (Fla. 1st DCA 1959)). See also In re Estate of Gilbert, 585 So.2d 970, 972 (Fla. 2d DCA 1991) (a specific bequest or devise " is a gift of a particular thing or of a specified part of the testator’s estate so described as to be capable of distinguishment from all others of the same kind.’ " (quoting Park Lake Presbyterian Church v. Henry’s Estate, 106 So.2d 215, 217 (Fla. 2d DCA 1958))).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bobby WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4084.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.
    Rehearing Denied Sept. 30, 2011.
    Bobby Wilson, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of counsel is denied on the merits.

DAVIS, PADOVANO, and RAY, JJ., concur.


author: LAWSON, J.

text:
    David M. SPALDING, M.D., Melbourne, etc., Appellant, v. Itzik ZATZ, Personal Representative, etc., Appellee.
    No. 5D09-3451.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.

      Shannon Kain and Irene Porter, of Hicks, Porter, Ebenfeld & Stein, P.A., Miami and Geoffrey D. Ringer, Robert D. Henry and Pierre J. Seacord, of Ringer, Henry, Buckley and Seacord, P.A., Orlando, for Appellant.
    Philip M. Burlington, of Burlington & Rockenbach, P.A., West Palm Beach, and David M. Carter, of Gould, Cooksey, Fen-nell, P.A., Vero Beach, for Appellee.
   LAWSON, J.

In this medical malpractice case, Dr. David Spalding and Melbourne Internal Medicine Associates, P.A. (collectively, “Defendants”) appeal from an order granting a new trial to Itzak Zatz (“Plaintiff’), as personal representative of the estate of Margaret Zatz (“Mrs.Zatz”). The trial court granted a new trial based on its finding that one of Defendants’ experts, Dr. Berlet, substantially changed his testimony on a critical causation issue from deposition to trial, which surprised and prejudiced Plaintiffs case. Because Plaintiff failed to object to the testimony on this basis when it was introduced, or otherwise alert the trial court to the issue during trial, when any prejudice could have been avoided or cured, we find that the trial court erred in granting a new trial on this basis, and reverse.

Background

Mrs. Zatz began having pain in her upper back near her left shoulder blade in September 2002. It was ultimately determined that she had a cancerous tumor in the intra-scapular area, which was surgically removed. However, the cancer metastasized to the lungs, and Mrs. Zatz died from complications related to the lung cancer in December 2005. Plaintiff faulted Defendants for not promptly ordering an MRI that would have led to discovery of the tumor before the cancer metastasized to the lungs. Defendants defended on several theories, including one that the cancer had already metastasized to the lungs by the time that Mrs. Zatz presented to Dr. Spalding in December 2002 for diagnosis and treatment. When the metastasis occurred was one of the hotly contested factual issues at trial, with Defendants presenting the testimony of three experts, including Dr. Berlet, on the issue.

Defendants’ expert oncologist, Dr. Blau-stein, believed there “clearly were cancer cells in Mrs. Zatz’s lungs prior to [Mrs. Zatz first appointment with Dr. Spalding].” He based this opinion on estimating the number of cancer cells in the lungs after the cancer was discovered, and subtracting the growth rate. From that calculation, he determined that Mrs. Zatz had approximately 448,000 cancer cells in her lungs before her first appointment with Dr. Spalding. Dr. Healey, an orthopedic oncologist (surgeon), opined that Mrs. Zatz had pulmonary metastasis “from the outset ... based on the size of the lesions that were identified certainly in September, and were, I think, in retrospect clearly present in June and possibly even in March in the CAT scan imaging.” He clarified that “from the outset” meant “as early as the prior August when she started having symptoms, and certainly from the fall.” Thus, any alleged delay in diagnosis had “no relation to her death.”

Dr. Berlet’s testimony related to the March 2003 image of Mrs. Zatz’s lungs referred to by Dr. Healey. As to this issue, Dr. Berlet opined that the March scan contained “a number of lesions that are highly suggestive of pre-existing and metastatic disease to the lungs.” He showed the jury these areas on the film, and compared the March scan to lung scans performed on June 5, 2003 and September 19, 2003, to show how the cancer progressed over time. Dr. Berlet explained that he could not have diagnosed cancer from the March scan alone because the lesions he identified on that scan could have been something else. But, he testified that by comparing the same areas of the lung in the later scans, he could see changes from which he could testify that the March scan did evidence cancer.

Plaintiff countered this defense testimony with live expert testimony and by reading into the record the depositions of three of Mrs. Zatz’s treating physicians from Shands Teaching Hospital. Mrs. Zatz’s treating radiologist, Dr. Bush, testified that he could not determine from the September 2003 scan when metastasis first occurred in the lungs, and that any abnormalities from the March scan had resolved by the June 2003 scan, such that the March scan did not evidence cancer. Mrs. Zatz’s surgeon, Dr. Vlasak, testified that he did not see any sign of metastasis during the July 2003 surgery. Mrs. Zatz’s treating oncologist, Dr. Zlotecki, was not as helpful to Plaintiff on this point, but still contradicted the testimony of Defendants’ experts. He testified that there was evidence of “metastatic involvement” in the lungs “at least by June of 2003” and “obviously” before the July 2003 surgery, but that it would be “impossible to speculate” as to whether the cancer had metastasized any earlier. Plaintiffs retained experts, oncologist Dr. Evens and pathologist Dr. Hadju, testified live at trial that they did not observe any signs of metastasis to the lungs until the June 2003 scans.

To understand the nature of the controversy surrounding Dr. Berlet’s trial testimony it is necessary to backtrack and discuss his pretrial deposition. Toward the end of Plaintiffs direct deposition examination, Dr. Berlet testified that he would not be offering any opinions about when the metastasis occurred or regarding any of the lung scans. Then, at the end of Plaintiffs examination, Defendants’ counsel asked for a break to confer with Dr. Berlet. After counsel’s session with Dr. Berlet ended, defense counsel then began eliciting opinions from Dr. Berlet about the topics on which Dr. Berlet had before said that he had no opinions. The following occurred during defense counsel’s deposition cross-examination:

Q Now, I understand that we don’t judge people by retrospective thinking, but now in looking at where the tumor eventually was diagnosed in September of '03 or December of '03 and then going back to the 3-27 films, do you see any evidence of potential lung involvement even on 3-27-03?
A Well, there is something in the lung at the left lung base.
Q Can you tell us what you see and describe it for the jury?
A Well, there are two nodules. And there’s some adjacent infiltrates. And it’s totally nonspecific, though, on this 3-27-2003.
Q Right. So you can’t tell exactly if that’s cancer just based on the radiology films, correct?
A Correct.
Q But when you go back and then look and see where the cancer eventually developed, it’s in the same place, correct?
A That’s one of the places.
Q And can’t cancer look like what you’re seeing on 3-27-03 in its early state?
A Yes.

On redirect examination, Plaintiffs counsel questioned Dr. Berlet extensively on these “additional opinions.” Dr. Berlet admitted that he had not noticed anything on the March scans that could have been cancer before conferring with defense counsel during the break. He also admitted that it would be “speculation” to say that what he saw on the March film was cancer, although he then clarified that cancer would have been part of the “differential diagnosis.” When asked again whether he would be offering an opinion at trial as to whether the March film evidenced metastatic cancer, Dr. Berlet responded: “I can’t say one way or the other.” He then reiterated that what he identified on the March scan: “[Cjould be anything. They could be little infiltrates. It could be scarring. It could be metastatic disease. It could be any of those things.”

Before trial, Plaintiff filed a motion in limine to prohibit Dr. Berlet from “offering any evidence ... that Plaintiffs March 27, 2003, and June 5, 3003, radiology studies of the lungs contain evidence of metastasis or cancer,” on ground that the testimony would be “pure speculation.” Defense counsel argued that Dr. Berlet had testified during deposition that cancer was one of three possible explanations for the abnormalities identified on the March 2003 films, and that Dr. Berlet was “basically going to testify that there are multiple differential diagnosis [sic] in this case, and cancer is one of them, that the things he sees on 3-27 and the things he sees on 6-5 is [sic] in the same general location as to what was seen in September.” The trial judge denied Plaintiffs motion in limine based either upon a finding that the testimony was not speculative or upon case law indicating that a defending doctor can offer testimony of “possibilities” in a medical malpractice trial. See Haas v. Zaccaria, 659 So.2d 1130, 1133 (Fla. 4th DCA 1995).

During trial, immediately prior to Dr. Berlet’s testimony, Plaintiff asked for a bench conference during which he sought to secure an agreement about the topics on which Dr. Berlet would be testifying at trial. A number of topics were discussed, including areas on which Dr. Berlet clearly did not offer an opinion during his deposition or at trial. Defense counsel repeatedly represented that Dr. Berlet would not be testifying differently at trial than he had during his deposition, with the judge stating: “I don’t want him changing anything he said,” and defense counsel assuring: “Oh, absolutely not, your Honor.”

On several occasions, the trial judge offered to take a break and read the deposition, so that he would be prepared to settle any objections based upon an argument that Dr. Berlet was giving opinions at trial that were not disclosed during the deposition. However, neither party requested the break or indicated that it would be necessary for the judge to read the deposition. Instead, Defendants’ counsel suggested that “rather than trying to anticipate every potential opinion that he has, can we take it up as it comes?” Plaintiffs counsel agreed, responding that: “We’ll go forward from here, Judge.”

Dr. Berlet’s direct examination proceeded, with Dr. Berlet opining that the cancer had metastasized into Mrs. Zatz’s lungs at least as early as the March lung scans, and bolstering this opinion by reviewing the scans with the jury (using magnified or enlarged trial exhibits). Plaintiff never once objected that his opinions were in any way different from the testimony he had given during his deposition; never objected to the trial exhibits; and, never claimed to be surprised by this testimony during the trial. Instead, Plaintiff cross-examined Dr. Berlet about how his opinion on the lung issue had evolved. During this cross-examination, Dr. Berlet admitted that in the first part of his deposition he had stated that he would not offer any opinion about the March CT scan of the lung. He admitted that during a break, defense counsel reminded him about a pri- or discussion they had had regarding the chest scan. At that point, the following exchange occurred:

Q Isn’t it true, even after you came back from that break where he discussed that stuff with you, Doctor, and you started offering opinions on the 3/27 CT of the chest, you said your opinions in terms of whether that indicated early onset of metastasis would be purely speculative?
A That’s true.
Q All right. And then you weren’t going to offer any additional opinions even then after the break about the June CT scan of the chest?
A I didn’t say that. I said — I said there were two or three lesions that I thought could represent metastatic disease. Then you asked me could these be non-specific findings, could they represent infiltrates, could they represent inflammatory disease, could they represent granulomas, and that’s all true, particularly prospectively.
Like if you were looking at the 3/27 film, and you never looked back, in other words, you didn’t have that advantage of retrospective analysis, you wouldn’t know. I mean, some of these weren’t even mentioned by the radiologist, and they were very subtle findings. I just think when I’m looking at this, they are very compelling.

After further questioning on other issues, Plaintiffs counsel returned to the issue of how Dr. Berlet’s opinion evolved over time.

Q In terms of the conference with [defense counsel] in terms of the MRIs— I’m sorry — the lung studies, initially you had no opinions about those showing anything that would be important to this case. Then you take a break. [Defense counsel] and you discuss the March study, and you come back and you offer for the first time that there is something in the lung base. That was your next opinion.
A That’s right.
Q Then [defense counsel], during the deposition, pulls out the 6/5 one and asks you to look at that, correct?
A Yes. That’s right.
Q And you offered your opinions then which were final about that, correct?
A Correct.
Q And you said at that time that even after looking at all those films, all the three, the September one, the June one, and the March one, I asked you if you were going to be offering any opinions that they represent the beginning stages of metastatic disease. Do you remember that?
A Yeah.
Q And you said, “I can’t say one way or the other. I mean, they could be anything. They could be little infiltrates. It could be scarring. It could be metastatic disease. It could be any of those things.” Correct?
A Yes.

Then, in closing argument, Plaintiffs counsel focused on how Dr. Berlet had changed his testimony:

Dr. Berlet, nice guy, very nice pictures that he showed you, but he disagreed with virtually every treating radiologist in this case, four or five different radiologists that he disagrees with, and, coincidentally, all in favor of the defense. And, coincidentally, on issues that he said initially after reviewing all the studies he had no opinions about. But after being spoon-fed information, and taking a break and having [defense counsel] show him the same studies he’s already looked at and says I have no comments on, he comes back and says, oh, yeah, that too. That too. But I’m speculating. I’m looking at them now, and I can’t tell you anything about this. I can’t tell you at all that it represents early metastatic cancer. That’s what he said in his deposition.
Then I said, do you have any comments about the later one? No, no comments about the later one. Oh, well, [defense counsel] gave him information about that as well, and then suddenly more speculation. Speculation then, at that time, turns into opinions here even though he said in his deposition that the lung tumors or the lung identifying— things he identified, that all the treating radiologists looked at, didn’t grow in between the two in comparing them, indicated it wasn’t cancer. But he came in, he disagreed with those radiologists, those treating physicians who not only compared them at the time, but under intense questioning while they pulled those studies back up again.
Dr. Bush looked at them and said, no, there is no cancer in March. What was shown there was a pneumonitis. It was non-specific, and it was cleared, that area was cleared by June. So, it didn’t represent early metastatic. So, that’s one, even though he said he was speculating, that Dr. Berlet wishes to disagree with.

After the jury returned a defense verdict, Plaintiff moved for a new trial. Among the several grounds for new trial were the following related to this appeal: “(1) introduction of surprise and speculative testimony from defense expert, Mathew Berlet, M.D., that was not disclosed until Dr. Berlet testified at trial; (2) improper publishing of surprise exhibits related to key issues in the case which were never disclosed nor testified to by any witness; [and] (3) improper closing argument reinforcing surprise and speculative testimony of Dr. Berlet.... ” The trial court agreed that Dr. Berlet’s testimony materially varied from deposition to trial, and granted a new trial on this basis.

Analysis

Generally speaking, a party complaining of objectionable testimony is required to make a contemporaneous objection to that testimony and timely move for a mistrial in order to preserve the issue for appeal. Dorsey v. Reddy, 931 So.2d 259, 265 (Fla. 5th DCA 2006). The purpose of this rule is give the trial court an opportunity to correct any alleged error. Id. The exception to this rule is if the error is fundamental. Id.

This general rule also applies in the context of a motion for new trial based upon surprise testimony. As explained in Cordoba v. Rodriguez, 939 So.2d 319 (Fla. 4th DCA 2006):

Generally, a motion for a new trial based on an error occurring during the trial ■will not be granted unless the moving party had previously made an objection during trial at the time of the alleged error.... [And], where a trial court grants a new trial on the ground of unpreserved error, the court is not operating within the area of its discretion, and the ruling will be upheld only if the error corrected was fundamental.

Id. at 322 (internal citations omitted). The Cordoba panel further explained that: ‘Fundamental error,’ for purposes of granting a new trial, means an error which deprives a party of a fair trial or an error which objection or a curative instruction could not correct; such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury.” Id. (citation omitted). “Whether an error is fundamental is reviewed on appeal as a question of law.” Id. (citation omitted).

Applying this law, it is clear that the trial court should not have granted a new trial on the basis of Plaintiffs claimed surprise at Dr. Berlet’s testimony absent a finding of fundamental error. Again, Plaintiff never objected to the testimony on the basis of surprise and never, during the trial, brought to the judge’s attention his contention that Dr. Berlet was offering opinions that had not been disclosed prior to trial. In granting relief, the trial court did not find fundamental error. And, there is no reason to send the matter back for the trial court to conduct a fundamental error analysis when we review the issue de novo as a question of law. Id.

As for whether the “surprise” testimony rises to the level of fundamental error, we readily conclude that it does not. First, we have a hard time even understanding how Plaintiff can claim surprise at Dr. Berlet’s opinions relating to the timing of metastasis into the lungs given that Plaintiff sought to exclude the opinions on other grounds by way of a pretrial motion in limine, and lost. Second, any difference between Dr. Berlet’s deposition and trial testimony is merely a matter of degree. He testified to the same basic conclusions both at deposition and at trial. Although his opinions clearly strengthened on this topic at trial, the trial court may well have limited Dr. Berlet’s testimony if the matter had been brought to the court’s attention. And, finally, Plaintiff was already prepared to address this topic at trial with its own contrary evidence — since the issue was being addressed by other defense experts as well.

We also note that the same fundamental error analysis would apply if this issue is viewed as one of attorney misconduct (eliciting testimony contrary to the understanding between the trial judge and defense counsel that Dr. Berlet should not express opinions not testified to during deposition). As explained in Companioni v. City of Tampa, 51 So.3d 452, 456 (Fla.2010), “when a party objects to instances of attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court’s review of a motion for a new trial. If the issue is not preserved in this manner, then the conduct is subject to fundamental error analysis ...”

Finally, we note the similarity between this case and Millar Elevator Service Co. v. McGowan, 819 So.2d 145 (Fla. 2d DCA 2002). There, the defendant in a personal injury lawsuit based on an alleged elevator malfunction appealed from an order granting the plaintiffs a new trial. Id. at 146. In their motion for new trial, the plaintiffs argued that the defendant had prejudiced them by offering surprise expert testimony on causation that was different from the expert’s deposition testimony. The trial court agreed and granted a new trial, but the appellate court reversed because the plaintiffs neither objected to the surprise testimony nor timely sought a mistrial. Id. at 147.

Instead of objecting to the surprise defense testimony, the plaintiffs attempted to capitalize on this testimony in cross-examination by repeatedly highlighting the fact that the expert’s testimony had changed from deposition to trial. Id. at 149, 152. Then, in closing argument, the plaintiffs urged the jury to discredit the new theory because of the perceived changes in defense expert testimony. Id. at 152. The appellate court concluded that the error was waived because the plaintiffs failed to contemporaneously object. The court reasoned, in part:

To provide a trial court with the opportunity to correct errors, a timely objection is necessary. City of Orlando v. Birmingham, 589 So.2d 1133 (Fla.1989). This requirement also promotes judicial economy and prevents “a party from rolling the dice with the jury, confident that an unvoiced objection will garner a new trial if the verdict is unfavorable.” Lowe Inv. Corp. v. Clemente, 685 So.2d 84, 85 (Fla. 2d DCA 1996) (citing Hargrove v. CSX Tramp. Inc., 631 So.2d 345, 346 (Fla. 2d DCA 1994)). In Lowe Investment Corp., we warned:
Trial counsel simply cannot allow error to occur without objection, hope they will win in spite of the error, and be confident of a new trial when the trial court has not been afforded the opportunity to cure the error. The cases are legion that warn trial counsel they cannot have their cake and eat it too.
685 So.2d at 85. Here, plaintiffs’ counsel repeatedly questioned defense witnesses about this allegedly surprising “new theory,” never objected, never afforded the trial court a contemporaneous opportunity to correct the problem, and, in fact, attempted to use the “new theory” to plaintiffs’ advantage by arguing it in closing....
... Plaintiffs’ counsel rolled the dice here and came up short. The trial court abused its discretion in granting the motion for mistrial.
Finally, in the circumstances of this case, we further conclude that the unob-jected-to mention by defense witnesses of a “new” theory since deposition did not rise to an error of fundamental dimension. Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000).

Id. at 153. Millar Elevator is materially indistinguishable from our case as to the issue on appeal.

Accordingly, we reverse the order granting new trial and remand the case to the trial court. Because Plaintiffs motion for new trial contained other grounds not reached by the trial court, we direct the court to consider the other issues raised in Plaintiffs motion on remand.

REVERSED AND REMANDED WITH DIRECTIONS.

GRIFFIN and PALMER, JJ., concur.

      . Because Plaintiff did not challenge the trial court’s ruling on this issue by filing a cross-appeal, we do not address it. Additionally, we note that although Defendants argue in their initial brief that Dr. Berlet’s testimony cannot be excluded as speculative (presumably to avoid affirmance based upon a tipsy coachman analysis), Plaintiff did not respond to this argument in its answer brief.


author: LEVINE, J.

text:
    Hyron Jerome ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1749.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Rehearing Denied Oct. 21, 2011.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented on appeal is whether appellant’s confession to the police was properly admitted into evidence at trial pursuant to section 92.565, Florida Statutes, despite the fact that the state was unable to establish the corpus delicti for the crime of sexual battery of a child, W.B. We find that the trial court did not err in determining that appellant’s statement was trustworthy and as such admissible under section 92.565, and we affirm appellant’s conviction. However, we also find that the trial court erred in calculating appellant’s sentencing scoresheet, and as such, we reverse for the trial court to resentence appellant based on a corrected scoresheet.

Appellant was charged with lewd and lascivious molestation of T.D. and with the sexual battery of both W.B. and P.D. Appellant was found not guilty of the lewd and lascivious molestation charge but guilty of the sexual battery charges after a jury trial, and the trial court sentenced appellant to twenty-five years in prison.

The main issue on appeal is whether the trial court erred in admitting appellant’s incriminating statements, where he confessed to having sexual relations with both P.D. and W.B. At a pretrial hearing, the state filed a motion to admit appellant’s statement, without establishing the corpus delicti of the crime of sexual battery as to W.B. The state relied on section 92.565, Florida Statutes, which states:

In any criminal action in which the defendant is charged with a crime against a victim under s. 794.011; [or] s. 800.04 ... involving sexual abuse ... the defendant’s memorialized confession or admission is admissible during trial without the state having to prove a corpus delicti of the crime if the court finds in a hearing conducted outside the presence of the jury that the state is unable to show the existence of each element of the crime, and having so found, further finds that the defendant’s confession or admission is trustworthy.

The statute also looks to other factors which may be relevant in determining whether the state is unable to show the existence of each element of the crime, including that at the time the crime was committed, the victim was physically helpless, physically incapacitated, or less than twelve years of age.

In the present case, W.B. initially told the police that she had sex with appellant on more than one occasion. Subsequently, at depositions, W.B. recanted her accusations against appellant. However, P.D. did not recant her accusations against appellant, which included having sex with appellant about once a week. Further, P.D. described intimate details of her last sexual encounter with appellant that corroborated the statement appellant gave the police. Appellant described the details of his encounters, and specifically the last encounter with P.D., in the same taped interview that the state wanted to introduce as evidence of appellant’s sexual battery of W.B.

In a pretrial hearing, the trial court found appellant’s statements were sufficiently trustworthy to admit them as to W.B. The trial court found the detailed statements by appellant, including the frequency of the encounters and the specific details of the intimate encounter between P.D. and appellant, satisfied the trustworthiness requirement of section 92.565. This appeal ensues.

A trial court’s findings of fact will be sustained on appeal if supported by competent, substantial evidence. The trial court’s resolution of legal questions and application of the facts to the law are reviewed de novo on appeal. See, e.g., State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001).

In the present case, as to the allegations concerning W.B., since her recantation, the only evidence against appellant is his confession. The Florida Supreme Court has held that “a trial court may consider a victim’s recantation when determining whether the State is unable to prove the existence of the elements of the crime for purposes of admitting a statement pursuant to section 92.565.” Hobbs v. State, 999 So.2d 1025, 1028 (Fla.2008). Therefore, since the state cannot prove the corpus delicti of the crime concerning W.B., the state must then “prove by a preponderance of evidence that there is sufficient corroborating evidence that tends to establish the trustworthiness” of the defendant’s confession. § 92.565(3), Fla. Stat.

The statute eliminates the state’s burden of “establishing] the corpus delicti of the crime as a predicate to admitting the defendant’s confession in[to] evidence.” Bradley v. State, 918 So.2d 337, 340 (Fla. 1st DCA 2005). The Florida statute is similar to the federal standard for the admissibility of a defendant’s confession. When attempting to determine the trustworthiness of a defendant’s confession, federal courts have looked to evidence “typically used to bolster the credibility and reliability of an out-of-court statement.” United States v. Singleterry, 29 F.3d 733, 737 n. 3 (1st Cir.1994). For example, federal courts could find the requisite corroboration to establish trustworthiness “in the detailed nature of the confession itself, or in the recital of facts that would be unknown to anyone other than the criminal.” United States v. Felder, 572 F.Supp. 17, 22 (E.D.Pa.1983). The evidence used to corroborate the confession “may even be collateral to the crime itself.” Virgin Islands v. Harris, 938 F.2d 401, 410 (3d Cir.1991).

In the present case, despite the fact that W.B. recanted, there is sufficient evidence in the record to support the trial court’s finding of trustworthiness. Appellant gave a statement in which he confessed to sexual relations with W.B. and P.D. Appellant also subsequently wrote a letter of apology to all three girls. Appellant’s oral statement included several indicia of trustworthiness that would have been unknown to anyone other than the criminal. For example, appellant and P.D. independently testified to the specific nature and position of their sexual encounter. Both appellant and P.D. described a single encounter in which P.D. performed oral sex on appellant. Further, appellant and P.D. confirmed they had multiple sexual encounters over a period of years. The fact that P.D. corroborated appellant’s confession is sufficient to guarantee the trustworthiness of his admissions as related to W.B. See, e.g., United States v. Wilson, 436 F.2d 122, 124 (3d Cir.1971) (holding that “[s]ince two parts of [the defendant’s] admission were corroborated by other evidence, this established the trustworthiness of the entire admission and authorized the prosecutor to prove the element of interstate transportation solely by [the defendant’s] admission”). Finally, even W.B.’s initial statement to the police, before she recanted, corroborated appellant’s statement as to the fact that appellant and W.B. had sex on more than one occasion. In summary, appellant’s entire confession detailing criminal conduct with both W.B. and P.D. was sufficiently corroborated by all of the above factors. Thus, the trial court correctly admitted the confession at trial, and we affirm appellant’s conviction.

However, we reverse appellant’s sentence, since the scoresheet assessed in error points for penetration, where the jury verdict form did not distinguish the findings that substantiated the verdict between “penetration” and “union” with the victim’s sexual organ. We find no basis in the record to support the assessment of sexual penetration points as to W.B. “[A]l-though the sentence imposed in this case falls within the permitted range of a properly prepared scoresheet, we cannot conclude with certainty that appellant’s sentence would have been the same if the trial court had used a properly prepared score-sheet.” Val v. State, 741 So.2d 1199, 1200 (Fla. 4th DCA 1999). Therefore, we reverse appellant’s sentence as to the sexual battery of W.B. and remand for resentenc-ing with a corrected scoresheet.

In summary, we affirm the conviction and reverse and remand for a new sentencing hearing.

Affirmed in part, reversed in part, and remanded.

CIKLIN, J., and THORNTON, JOHN W., JR., Associate Judge, concur.

      . However, we find no violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See Galindez v. State, 955 So.2d 517, 519 (Fla.2007) ("[A] judge may not find any fact that exposes a defendant to a sentence exceeding the relevant statutory maximum (emphasis added).


author: MAY, C.J.

text:
    Yasser ANAYA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4966.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 2011.

      Philip J. Massa, Regional Counsel, and Andrea H. Dueñas, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals an order denying certain post-conviction relief claims, and the sentence entered after the trial court granted his motion in part. He argues the trial court erred in enhancing his sentence as a Prison Releasee Reoffender (PRR)— long after the court pronounced his original sentence without the PRR designation — and in denying his other claims. We reverse the PRR sentence and remand the case to strike the enhancement. We affirm the trial court’s denial of his other claims.

The defendant was convicted of kidnapping, robbery, and trafficking, arising out of an armed robbery of a pharmacy. His primary defense to the charges was that he lacked specific intent to commit the crimes either because he was insane or involuntarily intoxicated due to his addiction to Oxycodone. After having received a report from his expert, defense counsel withdrew the insanity defense, but proceeded on the lack of specific intent defense due to involuntary intoxication.

The jury found the defendant guilty as charged. The trial court sentenced him to life in prison on counts one and two, and to thirty years in prison on count three. The next day the defendant was brought back from the jail. The trial court then added the PRR enhancement to the defendant’s sentence on counts one and two, nunc -pro tunc to the prior day. Defense counsel did not object. We affirmed the case on direct appeal.

A year later, the defendant filed his pro se motion for post-conviction relief. The State filed a response, and attached relevant portions of the record, including transcripts of the sentencing hearings. The State agreed that defense counsel had been ineffective in failing to object to the PRR enhancement, but argued that the other claims lacked merit.

The court denied the motion based on the State’s response with the exception of the issue concerning the PRR enhancement. Rather than strike the PRR designation, the court once again re-sentenced the defendant to life imprisonment on counts one and two and designated the defendant as a PRR nunc pro tunc to the original sentencing date three years prior.

On appeal, the defendant continues to argue that the PRR classification violates his right against double jeopardy. We agree.

“Jeopardy ‘attaches when a court imposes a sentence, after which the double jeopardy clauses protect the defendant from receiving a punishment greater than the sentence already imposed.’ ” Ingraham v. State, 842 So.2d 954, 955 (Fla. 4th DCA 2003) (quoting Joslin v. State, 826 So.2d 324, 326 (Fla. 2d DCA 2002)). ‘“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.’ ” Tran v. State, 965 So.2d 226, 229 (Fla. 4th DCA 2007) (quoting Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003)). “Moreover, subsequent imposition of new conditions or terms to a sentence or order of probation has been held to violate a defendant’s constitutional right against double jeopardy.” Id.

The court’s imposition of the PRR designation enhanced the defendant’s sentence because it rendered him ineligible for early release. This enhancement ran afoul of the defendant’s protection against double jeopardy. See Evans v. State, 675 So.2d 1012, 1014-15 (Fla. 4th DCA 1996). We therefore reverse the new sentence and remand the case to the trial court to strike the PRR designation. We find no error, however, in the trial court’s summary denial of the defendant’s other claims.

Affirmed in part and reversed in part. Remanded to the trial court to strike the PRR enhancement.

HAZOURI and CONNER, JJ„ concur.

      . He alleged that his trial counsel was ineffective because he failed to: (1) adequately investigate and present his involuntary intoxication defense; (2) object to the trafficking conviction on the basis of double jeopardy; (3) move for dismissal of the kidnapping charge; and (4) object to the sentencing error. In his second ground, he alleged fundamental error in the court’s denial of his motion for judgment of acquittal on the kidnapping charge.

      . The judge who heard the post-conviction relief motion was not the original trial judge, who also resentenced the defendant.


author: HAZOURI, J.

text:
    STATE of Florida, Appellant, v. Gregory HERRON, Appellee.
    No. 4D10-2775.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 2011.
    Rehearing Denied Oct. 21, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.
   HAZOURI, J.

The state appeals an order granting Defendant, Gregory Herron’s, Motion for Judgment of Acquittal Notwithstanding the Verdict. Herron was charged with three counts: (I) burglary (dwelling/battery); (II) resisting/obstructing police officers without violence; and (III) unlawfully touching, striking, or harming a police dog. At trial, the jury returned verdicts of guilty as charged on all three counts. Herron moved for judgment of acquittal and the trial court granted his motion on count (I) burglary with battery. We reverse the trial court’s order granting Her-ron’s motion for judgment of acquittal.

An appellate court’s standard of review for a motion for judgment of acquittal notwithstanding the verdict is de novo. E.g., Pagan v. State, 830 So.2d 792, 803 (Fla.2002). The state must prove that the defendant committed burglary with the intention of committing an underlying offense. See Stone v. State, 899 So.2d 421, 423 (Fla. 5th DCA 2005); Davis v. State, 736 So.2d 27, 27 (Fla. 4th DCA 1999). Whether one had intent is generally a question given to a jury, for reasonable men may differ in determining intent when taking into consideration the surrounding circumstances. Washington v. State, 737 So.2d 1208, 1216 (Fla. 1st DCA 1999). Therefore, if a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, a conviction should be sustained. Pagan, 830 So.2d at 803 (citing Banks v. State, 732 So.2d 1065 (Fla.1999)).

To prove burglary, the state must show that the defendant entered or remained in the dwelling, structure, or curti-lage, with the intent to commit an offense therein. § 810.02(l)(b)l.-2., Fla. Stat. (2010). In this case, Herron climbed up the balcony of his ex-girlfriend, Natalie Gonzalez’s, third floor apartment. Gonzalez saw Herron and opened the balcony door to let him into her apartment. Herron told her he needed a place to sleep because his parents had kicked him out. Gonzalez asked him to leave and Herron refused. Herron then grew suspicious that Gonzalez’s new boyfriend was in the apartment. Curious, he entered the bedroom, opened the closet door, and found a man hiding. A fight broke out between the two men and Gonzalez continued to tell them to leave and stop fighting. Attempting to break up the fight, Gonzalez was hit. Additionally, Gonzalez testified that Herron kicked her and threw a book bag that hit her face.

This case turns on the issue of intent. Here there is no evidence that Herron unlawfully entered the balcony with the intent to commit battery. Instead, there is only evidence that Herron entered the apartment with the intentions of sleeping there and without knowing that another man was in the residence. However, there is sufficient evidence for a reasonable jury to find that Herron remained within Gonzalez’s apartment with the intent to commit a battery. When entrance is licensed or invited, and such license or invitation is proved, “a remaining in burglary” may have occurred if permission to remain in the dwelling was revoked. Harris v. State, 48 So.3d 922, 924 (Fla. 5th DCA 2010). Gonzalez revoked her permission for Herron to remain in the apartment and Herron remained. Although at first Herron only remained in the apartment with a mere suspicion that Gonzalez’s boyfriend was in the apartment, once he opened the closet door his suspicion was met and he remained in the apartment and fought. Further, while he may not have intended to injure Gonzalez, the named victim, he still remained in the apartment and battered someone therein. See § 810.02(l)(b)2.b., Fla. Stat. (2010). Thus, it seems reasonable for the jury to conclude from these circumstances that Her-ron remained in the apartment with the intent to commit a battery.

Accordingly, we find that the jury’s verdict should stand and reverse the trial court’s decision to acquit Herron on count (I).

Reversed and Remanded.

MAY, C.J., and CONNER, J., concur.