text:
    In re AMENDMENTS TO the FLORIDA PROBATE RULES.
    No. SC13-30.
    Supreme Court of Florida.
    Sept. 26, 2013.
    James Raymond George, Chair, Florida Probate Rules Committee, Fort Lauder-dale, FL; John F. Harkness, Jr., Executive Director, and Heather Telfer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

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

The Probate Rules Committee (Committee) has filed its regular-cycle report of proposed amendments to the Florida Probate Rules. The Committee proposes amending rule 5.060 (Request for Notices and Copies of Pleadings), rule 5.110 (Address Designation for Personal Representative or Guardian; Designation of Resident Agent and Acceptance), rule 5.230 (Commission to Prove Will), rule 5.395 (Notice of Federal Estate Tax Return), rule 5.400 (Distribution and Discharge), rule 5.404 (Notice of Taking Possession of Protected Homestead), rule 5.530 (Summary Administration), rule 5.649 (Guardian Advocate), rule 5.660 (Proceedings for Removal of Guardian), rule 5.681 (Restoration of Rights of Person with Developmental Disability), and rule 5.696 (Annual Accounting). The Committee also proposes adding new rule 5.2405 (Service of Notice of Administration on Personal Representative) to the Florida Probate Rules.

Consistent with Florida Rule of Judicial Administration 2.140(b)(2) (Amending Rules of Court — Schedule for Rules Proposals), the Committee published its proposals for comment before filing them with the Court. No comments were received. After submission to the Court, we republished the proposed amendments for comment. No comments were filed.

Having considered the Committee’s report, we adopt these straightforward amendments to the Florida Probate Rules as proposed by the Committee. The Florida Probate Rules are hereby amended as set forth in the appendix to this opinion. New language is underscored; deleted language is struck through. The committee notes are offered as an explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 2014, at 12:01 a.m.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

Appendix

RULE 5.060. REQUEST FOR NOTICES AND COPIES OF PLEADINGS

(a) Request. Any interested person who desires notice of proceedings in the estate of a decedent or ward may file a separate written request for notice of further proceedings, designating therein such person’s residence and post office address. When such person’s residence or post office address changes, a new designation of such change shall be filed in the proceedings. A person filing such request, or address change, shalimust also^ deliver a copy thereof to the clerk, who-shall forthwith mail it-toserve a copy on the attorney for the personal representative or guardian, noting on the original the-fac-t of mailing and include a certificate of service.

(b) Notice and Copies. A party filing a request shall be served thereafter by the moving party with notice of further proceedings and with copies of subsequent pleadings and papersdocuments as long as the party is an interested person.

Committee Notes

Rule History

1975-2012 Revision: [NO CHANGE]

2013 Revision: Subdivisions (a) and (b) revised to reflect service of documents, rather than papers. Subdivision (a) revised to shift responsibility for service of the request from the clerk to the interested person making the request for notice and copies. Editorial changes to conform to the court’s guidelines for rule submissions as set forth in AOSCQ6-14.

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.110. ADDRESS DESIGNATION FOR PERSONAL REPRESENTATIVE OR GUARDIAN; DESIGNATION OF RESIDENT AGENT AND ACCEPTANCE

(a) Address Designation of Personal Representative or Guardian. Before letters are issued, the personal representative or guardian shalimust file a designation of its residence street address, and mailing address. If the personal representative or guardian is an individual, the designation must also include the individual's residence address. The personal representative or guardian shalimust notify the court of any change in its residence address, street address, or mailing address within 20 days of the change.

(b) Designation of Resident Agent. Before letters are issued, a personal representative or guardian shalimust file a designation of resident agent for service of process or notice, and the acceptance by the resident agent. A designation of resident agent is not required if a personal representative or guardian is (1) a corporate fiduciary having an office in Florida, or (2) a Florida Bar member who is a resident of and has an office in Florida. The designation shalimust contain the name, residence street address, and mailing address of the resident agent. A Florida-office street-address and mailing address for the-atterney as resident agent may be designated in-lieu of a residence address.If the resident agent is an individual who is not an attorney, the designation must also include the individual’s residence address.

(c) [NO CHANGE]

(d) Acceptance by Resident Agent. The resident agent shah must sign a written acceptance of its designation.

(e)-(f) [NO CHANGE]

(g) Successor Agent. If the resident agent dies, resigns, or is unable to act for any other reason, the personal representative or guardian shalimust appoint a successor agent within 10 days after receiving notice that such event has occurred.

Committee Notes

Rule History

1977-2010 Revision: [NO CHANGE]

2013 Revision: Subdivision (b) amended to limit to individuals the requirement that the guardian or personal representative provide a designation of residence address, excluding corporate fiduciaries. Editorial changes to conform to the court’s guidelines for rules submissions as set forth in AOSCQ6-14.

Rule References

[NO CHANGE]

RULE 5.230. COMMISSION TO PROVE WILL

(a) Petition. On petition the court may appoint a commissioner to take the oath of any person qualified to prove the will under Florida law. The petition shalimust set forth the date of the will and the place where it was executed, if known; the names of the witnesses and address of the witness whose oath is to be taken; and the name, title, and address of the proposed commissioner.

(b) Commission. The commission shall-must-be- directed to anya person who is authorized to administer an oath by the laws of Florida, the United States of America, or the state or country where the witness may be found, and it shall empower the commissioner to take the oath of the witness to prove the will and shall direct the commissioner to certify the oath and file the executed commission, copy of the will, oath of the witness, and certificate of commissioner. An oath of the commissioner is not required.

(c) Mailing or Delivery. The petitioner or the petitioner’s attorney shalimust cause the commission, together with a copy of the will, the oath, and the certificate of commissioner, to be mailed or delivered to the commissioner.

(d) Filing. The executed commission, copy of the will, oath of the witness, and certificate of commissioner shalimust be filed.

fy)-Objections, Objections-to-the validity-of -the will shall-follow-the form and procedure set forth in these-rules pertaining-to revocation of probate. -Objections to the-qualifications of the personal representative-shall follow the form and procedure set-forth-in-these r-ales-pertaining to-removal of personal representatives. — Objections-to the venue -or-jurisdiction of the court shall follow the form and procedure set forth-in-the Florida — Rules of Civil' Procedure.

Committee Notes

Rule History

1975-2003 Revision: [NO CHANGE]

2013 Revision: Subdivision (e) deleted because it duplicates subdivision (d) in Rule 5.240. Committee notes revised. Editorial changes to conform to the court’s guidelines for rules submissions as set forth in AOSCQ6-14.

Statutory References

§ 92.50, Fla. Stat. Oaths, affidavits, and acknowledgments; who may take or administer; requirements.

§ 733.101, Fla. Stat. Venue of probate proceedings.

-§ — 733.-109, Fla. Stat. Revocation of pro-

§ 733.201, Fla. Stat. Proof of wills.

§ 733.504rFla. Stat. Removal of personal representative; causes for removal.

§ 733.506, Fla. Stat.-Proceedings for removal-

§ 22 U.S.C. 4215 Notarial acts, oaths, affirmations, affidavits, and depositions; fees.

Rule References

Fla. Prob. R. 5.050 Transfer of proceedings.

Fla. Prob. R. 5.270 Revocation of pro-

Fla. Prob. R. 5.440 Proceedings for- removal-

Fla. R. Civ. P. 1.060 Transfers of actions.

RULE 5.2405. SERVICE OF NOTICE OF ADMINISTRATION ON PERSONAL REPRESENTATIVE

(a) Date Notice of Administration is Considered Served on Person who is Personal Representative. Unless service of the notice of administration is waived pursuant to Rule 5.240(e), when a person who is entitled to service of the notice of administration pursuant to Rule 5.240(a) is also a personal representative, the notice of administration shall be deemed served upon the person on the earliest of the following dates:

(1) the date on which the person acknowledges in writing receipt of the notice of administration;

(2) the date on which the notice of administration is first served on any other person entitled to service of the notice of administration (or the first among multiple persons entitled to service); or

(3) the date that is 30 days after the date letters of administration are issued.

(b) Date Other Notices are Considered Served on Person who is Personal Representative. When a person who is entitled to service of notice under these rules or the Florida Probate Code (other than the notice of administration) is also a personal representative, any notice shall be deemed as having been served on the personal representative on the earliest of the following dates:

(1) the date on which the person acknowledges in writing receipt of the notice;

(2) the date on which the notice is required to be served by the personal representative under these rules or the Florida Probate Code; or,

(3) the date on which the notice is first served by the personal representative on any other person entitled to service of the same notice.

Committee Notes

This rule is intended to address situations in which the personal representative is also an interested person in an estate, but claims that he or she has not received the notice of administration, despite the personal representative being required to serve the notice. The receipt of the notice of administration can trigger time limits for the person receiving the notice with regard to certain rights, such as the right to claim an elective share.

Rule History

2013 Revision: New rule.

Statutory References

§ 731.201(23), Fla. Stat. General definitions.

§ 731,301, Fla. Stat. Notice.

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

§ 732.2135, Fla. Stat. Time of election; extensions; withdrawal.

§ 732.5165, Fla. Stat. Effect of fraud, duress, mistake, and undue influence.

§ 733.101, Fla. Stat. Venue of probate proceedings.

bate. o & I© 2 o s o CO 3 F OO S’ CO CO

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

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

§ 733.302, Fla. Stat. Who may be appointed personal representative.

§ 733.303, Fla. Stat. Persons not qualified.

§ 733.305, Fla. Stat. Trust companies and other corporations and associations.

§ 733.504, Fla. Stat. Removal of personal representative; causes for removal.

§ 733.506, Fla. Stat. Proceedings for removal.

Rule References

Fla. Prob. R. 5.025 Adversary proceedings.

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.050 Transfer of proceedings.

Fla. Prob. R. 5.180 Waiver and consent.

Fla. Prob. R. 5.270 Revocation of probate.

Fla. Prob. R. 5.440 Proceedings for removal of personal representative.

Fla. R. Civ. P. 1,060 Transfers of actions.

RULE 5.395. NOTICE OF FEDERAL ESTATE TAX RETURN

When a federal estate tax return is filed, required to be filed, or will be filed, the personal representative shall file a notice stating the due date of the return. The notice shall be filed within 12 months from the date letters are issued and copies of the notice shall be served on interested persons. Whenever the due date is subsequently extended, similar notice shall be filed and served.

Committee Notes

[NO CHANGE]

Rule History

1984-2003 Revision: [NO CHANGE]

2013 Revision: Clarifies the available option to file a federal tax return even if one is not required by state or federal rule or law.

Rule Reference

[NO CHANGE]

RULE 5.400. DISTRIBUTION AND DISCHARGE

(a)-(b) [NO CHANGE]

(c) Closing Estate; Extension. The final accounting and petition for discharge shall be filed and served on interested persons within 12 months after issuance of letters for an estates not required to filefil-ing a federal estate tax return, otherwise within 12 months from the date the return is due, unless the time is extended by the court for cause shown after notice to interested persons. The petition to extend time shall state the status of the estate and the reason for the extension.

(d)-(e) [NO CHANGE]

Committee Notes

[NO CHANGE]

Rule History

1980-2012 Revision: [NO CHANGE]

2013 Revision: Clarifies the available option to file a federal tax return even if one is not required by state or federal rule or law.

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.404. NOTICE OF TAKING POSSESSION OF PROTECTED HOMESTEAD

(a) [NO CHANGE]

(b) Contents of Notice. The notice shall contain:

(1) — (3) [NO CHANGE]

(4) if-known, the location, date¡-aná-time the petition to-determine homestead status- will-be heard, and

^5) if the personal representative is in possession when the notice is filed, the date the personal representative took possession.

(c) [NO CHANGE]

Committee Notes

Rule History

2002-2005 Revision: [NO CHANGE]

2013 Revision: Deletes subdivision (b)(4) because the required information is not appropriate for a Notice of Taking possession, nor does it comply with the Americans with Disabilities Act requirements.

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.530. SUMMARY ADMINISTRATION

(a) Petition. The petition shallmust be verified as required by law and shallmust contain:

(1) — (8) [NO CHANGE]

(9) a statement either

(A) that all creditors’ claims are barred or

(B) that a diligent search and reasonable inquiry for any known or reasonably ascertainable creditors has been made and one of the following:

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

(B)(ii) The name and address of each creditor, the nature of the debt, the amount of the debt and whether the amount is estimated or exact, and when the debt is due. If provision for payment of the debt has been made other than for full payment in the proposed order of distribution, the following information shallmust be shown:

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

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

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

(iv)(d) The terms for payment and any limitations on the liability of the person paying the debt;

(10)-(12) [NO CHANGE]

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

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

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

Committee Notes

[NO CHANGE]

Rule History

1991-2012 Revision: [NO CHANGE]

2013 Revision: Subdivision (b) revised to substitute “documents” for “papers.” Committee notes revised. Editorial changes to conform to the court’s guidelines for rule submissions as set forth in AOSCQ6-14.

Statutory References

[NO CHANGE]

Rule References

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

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. Prob. R. 5.205(a)(3) Filing evidence of death.

Fla. R. Jud. Admin. 2.420 Public access to judicial branch records.

Fla. R. Jud. Admin. 2.425 Minimization of the filing of sensitive information.

Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.

RULE 5.649. GUARDIAN ADVOCATE

(a)Petition for Appointment of Guardian Advocate. A petition to appoint a guardian advocate for a person with a developmental disability may be executed by an adult person who is a resident of this state. The petition must be verified by the petitioner and must state:

(l)-(5) [NO CHANGE]

(6) if authority is sought over any property of the person, a description of that property and the reason why management or control of that property should be placed with a guardian advocate;

(67) the name of the proposed guardian advocate, the relationship of that porsoathe proposed guardian advocate to the person with a developmental disability, the relationship of the proposed guardian advocate with the providers of health care services, residential services, or other services to the person with developmental disabilities, and the reason why this personthe proposed guardian advocate should be appointed. If a willing and qualified guardian advocate cannot be located, the petition shallmust so state; and

(78) whether the petitioner has knowledge, information, or belief that the person with a developmental disability has executed an advance directive under chapter 765, Florida Statutes, or a durable power of attorney under chapter 709, Florida Statutes.

(b) Notice.

(1) — (2) [NO CHANGE]

(3) The notice must state that the person with a developmental disability has the right to be represented by counsel of the person’s own choice and that if the person ■ cannot afford an attorney, the court shall must initially appoint enecounseL

(c) Counsel. Within 3 days after a petition has been filed, the court shallmust appoint an attorney to represent a person with a developmental disability who is the subject of a petition to appoint a guardian advocate. The person with a developmental disability may substitute his or her own attorney for the attorney appointed by the court.

(d) Order. If the court finds the person with a developmental disability requires the appointment of a guardian advocate, the order appointing the guardian advocate shallmust contain findings of facts and conclusions of law, including:

(1) the nature and scope of the person’s inability to make decisions;

(2) the exact areas in which the indM-dualperson lacks ability to make informed decisions about care and treatment services or to meet the essential requirements for the individual’s physical health and safety;

(3) if any property of the person is to be placed under the management or control of the guardian advocate, a description of that property, any limitations as to the extent of such management or control, and the reason why management or control by the guardian advocate of that property is in the best interest of the person;

(34) if the person has executed an advance directive or durable power of attorney, a determination as to whether the documents sufficiently address the needs of the person and a finding that the advance directive or durable power of attorney does not provide an alternative to the appointment of a guardian advocate that sufficiently addresses the needs of the person with a developmental disability;

(45) if a durable power of attorney exists, the powers of the attorney-in-fact, if any, that are suspended and granted to the guardian advocate;

(56) if an advance directive exists and the court determines that the appointment of a guardian advocate is necessary, the authority, if any, the guardian advocate shall exercises over the health care surrogate;

(67) the specific legal disabilities to which the person with a developmental disability is subject;

(78) the name of the person selected as guardian advocate; and

(89) the powers, duties, and responsibilities of the guardian advocate, including bonding of the guardian advocate as provided by law.

(e) Issuance of Letters. Upon compliance with all of the foregoing, letters of guardian advocacy must be issued to the guardian advocate.

Committee Notes

Rule History

2008 Revision: [NO CHANGE]

2013 Revision: New subdivisions (a)(6) and (d)(3) added to address situations in which the guardian advocate will have authority over the property of the person with a developmental disability. New subdivision (e) added to provide for the issuance of letters of guardian advocacy. Editorial changes to subdivisions (a)(7) and (b)(3). Editorial changes to conform to the court’s guidelines for rules submissions as set forth in AOSCQ6-14.

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.660. PROCEEDINGS FOR REMOVAL OF GUARDIAN

(a) Notice. Proceedings for removal of a guardian may be instituted by a court, by any surety or other interested person, or by the ward, and formal notice of the petition for removal of a guardian shall must be served on all guardians, other interested persons, next of kin, and the ward. The pleading shallmust state with particularity the reasons why the guardian should be removed.

(b) Accounting. A removed guardian shallmust file with the court an accounting for the guardianship within 20 days after the guardian’s removal. A copy of the accounting shallmust be served on the successor guardian and the ward, unless the ward is a minor or has been determined to be totally incapacitated.

(c) Transfer of Property and Records. The removed guardian (or the guardian’s heirs, personal representative, or surety) shailmust turn over all the property of the ward in the removed guardian’s control and all guardianship records to the duly qualified successor. The successor guardian shailmust, or the ward may, demand of the removed guardian (or the guardian’s heirs, personal representative, or surety) all of those items.

(d) Failure to Comply. If a removed guardian fails to file a true, complete, and final accounting for the guardianship or to turn over to the successor all property of the ward in the removed guardian’s control and all guardianship records, the court shailmust issue a show-cause order.

(e) Guardian Advocates. Subdivisions (b) through (d) of this rule shall apply to guardian advocates only to the extent that the guardian advocate was granted authority over the property of the person with a developmental disability.

Committee Notes

Rule History

1977-2012 Revision: [NO CHANGE]

2013 Revision: Subdivision (b) revised to conform to section 744,511, Florida Statutes. Committee notes revised. Editorial changes to conform to the court’s guidelines for rules submissions as set forth in AOSCQ6-14.

Statutory References

[NO CHANGE]

Rule References

Fla. Prob. R. 5.025 Adversary proceedings.

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. Prob. R. 5.649 Guardian advocate.

Fla. R. Jud. Admin. 2.420 Public access to .judicial branch records.

Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.

RULE 5.681. RESTORATION OF RIGHTS OF PERSON WITH DEVELOPMENTAL DISABILITY

(a) Contents- of PetitionSuggestion of Restoration of Rights. A petition forsug-gestion of restoration of rights of a person with a developmental disability shallmay be executed by any interested person, including the person with a developmental disability. The suggestion must contain:

(1) faets-that ■support-the-' suggestion that restoration is feasible and would not pose a detriment to the health or welfare of the ward; and

(2)a statement that the person with a developmental disability is capable of exercising some or all of the rights that were granted to the guardian advocate;

(2) evidentiary support for the filing as provided by law; and

(3) the name and address of the attorney representing the person with a developmental disability, if any, known to the petitioner.

(b) Counsel. Within 3 days after filing the-petition, counsel shall be appointed for the person for whom a guardian advocate has been appointed as provided-by lawthe suggestion has been filed, the court must appoint an attorney to represent a person with a developmental disability who is not then represented by counsel as stated in the suggestion.

(c) Notice. Upon filing of the suggestion, if the name and address of the attorney representing the person with a developmental disability is listed in the suggestion, or upon the appointment of counsel, if no name and address of an attorney are listed in the suggestion, the clerk shailmust immediately send notice of the filing of the petitionsuggestion, together with a copy of the petitionsuggestion, to the person with a developmental disability, for — whom a guardian advocate was appointedjthe person’s guardian advocate, the person’s attorney, the attorney for the guardian advocate, if any, and any other interested person as directed by the court. The notice must contain a statement that all objections to the petitionsuggestion must be filed within 20 days after service of the notice. Formal notice shahmust be served on the guardian advocate. Informal notice may be served on the other persons. — The clerk shall ■-file-proof of sendee. Notice need not be served on the petitioner. The clerk must file proof of service.

(d) Objections. Any objection shahmust be in writing and shahmust state with particularity each item to which the objection is directed and the grounds on which the objection is based. The objector shah-must serve notice of hearing on-the objection and a copy of the objection on the person with the developmental disability, the person’s attorney, the person’s guardian advocate, the attorney for the guardian advocate, if any, the next of kin of the person with a developmental disability, and any other interested persons as directed by the court.

(e) Order.

(1) With — Hearing.—The court shall-must enter-an order denying — the peti-tionsuggestion or restoring all or some of the rights that were granted to the guardian advocate. If only some rights are restored to the person with a developmental disability, the order must state which rights are restored and amend the letters of guardian advocacy accordingly. The court need not hold a hearing prior to entering an order restoring rights if no objections are filed and the court is satisfied with the evidentiary support for restoration supplied by the petitioner.

(2) Without Hearing, — If the petitioner has-attaehed -evidence supporting the petition and if-no-objection is filed, the court may restore-all or some of the person’s rights-that-were granted to a guardian advocate.

(f) Amended PlanAdditional Requirements. Within-60-days after the order restoring rights-is entered^ the guardian advocate shall file-an amended-pIanJf personal rights are restored, the guardian advocate must file an amended plan within 60 days after the order restoring rights. If all property rights are restored, a guardian advocate previously granted management or control over property must file a final accounting within 60 days after the order restoring rights. A copy of theany amended plan and accounting shall-must bo promptly served on the person with a developmental disability and the person’s attorney.

Committee Notes

Rule History

2008 Revision: [NO CHANGE]

2013 Revision: Substantial revisions to reflect the designation of the pleading as a Suggestion of Restoration of Rights; the requirement for a statement of evidentiary support, the identification and address of the attorney for the person with a developmental disability; procedures for service of objections; clarification of requirements following a restoration of rights; and editorial changes. Editorial changes to conform to the court’s guidelines for rule submissions as set forth in AOSCQ6-14.

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]

RULE 5.696. ANNUAL ACCOUNTING

(a) Contents and Filing. The guardian of the property shalimust file an annual accounting as required by law. The annual accounting shalimust include:

(l)-(2) [NO CHANGE]

(b) Substantiating DapersDocuments. Unless otherwise ordered by the court, the guardian need not file the papersdocu-ments substantiating the annual accounting. Upon reasonable written request, the guardian of the property shall make the substantiating papersdocuments available for examination to persons entitled to receive or inspect the annual accounting.

(c) [NO CHANGE]

Committee Notes

Rule History

1991-2012 Revision: [NO CHANGE]

2013 Revision: Subdivision (b) revised to substitute “documents” for “papers.” Committee notes revised. Editorial changes to conform to the court’s guidelines for rule submissions as set forth in AOSCQ6-14.

Statutory References

[NO CHANGE]

Rule References

[NO CHANGE]


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO the FLORIDA SMALL CLAIMS RULES.
    No. SC13-72.
    Supreme Court of Florida.
    Sept. 26, 2013.
    Thomas Robert Thompson, Chair, Florida Small Claims Rules Committee, Tallahassee, FL; John F. Harkness, Jr., Executive Director, and Heather Telfer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

We have for consideration the regular-cycle report of proposed rule amendments filed by The Florida Bar’s Small Claims Rules Committee (Committee). See Fla. R. Jud. Admin. 2.140(b)(4). We have jurisdiction. See art. V, § 2(a), Fla. Const. We adopt the majority of the amendments as proposed, make an additional minor amendment, and decline to adopt a new rule.

BACKGROUND

The Committee proposes amendments to Florida Small Claim Rules 7.010 (Title and Scope), 7.050 (Commencement of Action; Statement of Claim), and 7.140 (Trial). It also proposes amendments to form 7.350 (Corporate Authorization to Allow Employee to Represent Corporation at Any Stage of Lawsuit). Additionally, the Committee proposes a new rule, rule 7.235 (Information for Holders of a Final Judgment), and a new form, form 7.336 (Statement of Claim for Replevin (For Return of Personal Property/Weapon from Government Entity)). Consistent with Florida Rule of Judicial Administration 2.140(b)(2), the Committee published the proposals for comment before filing them with the Court. The Committee received no comments. The Board of Governors of The Florida Bar unanimously approved the proposals. After the proposals were filed, the Court published them for comment in The Florida Bar News. The Court received no comments.

AMENDMENTS

The majority of the Committee’s proposals are straightforward and no comments were filed opposing them. We adopt those proposals without further discussion. We discuss only the amendments to rule 7.050 (Commencement of Action; Statement of Claim) and form 7.350 (Corporate Authorization to Allow Employee to Represent Corporation at Any Stage of Lawsuit), as well as an additional amendment we make to form 7.322 (Summons/Notice to Appear for Pretrial Conference). Further, we discuss proposed new rule, rule 7.235 (Information for Holders of a Final Judgment), which we decline to adopt.

The Committee unanimously proposed to amend rule 7.050(a)(2) (Commencement; Party Not Represented by Attorney to Sign) to replace “corporation” with “business entity recognized under Florida law.” The Committee also sought to replace the sentence which provides that “[a] corporation may be represented at any stage of the trial court proceedings by an officer of the corporation or any employee authorized in writing by an officer of the corporation,” with ones which state that “[a]ny business entity recognized under Florida law may be represented at any stage of the trial court proceedings by any principal of the business entity who has legal authority to bind the business entity or any employee authorized in writing by a principal of the business entity. A principal is defined as being an officer, membei', managing member, or partner of the business entity.” These amendments are adopted as proposed.

However, according to the Committee’s minutes submitted as an attachment to the Committee’s report, the Committee voted unanimously to also change the heading of form 7.350 from “AUTHORIZATION OF CORPORATE OFFICER” to “AUTHORIZATION OF PRINCIPAL.” It appears this change was inadvertently omitted from the Committee’s report. Accordingly, we amend the heading of form 7.350 as approved in the Committee’s minutes.

Additionally, form 7.322 (Summons/Notice to Appear for Pretrial Conference) contains the same sentence that the Committee proposed to amend in rule 7.050 and that the Court is adopting. In order to maintain consistency throughout the Florida Small Claims Rules, the Court, on its own motion, amends form 7.322 to replace the same text as was done in rule 7.050.

The Committee proposed a new rule that created a brochure which provided information regarding the actions a prevailing party in small claims court should take. We, however, decline to adopt the new rule because the Florida Small Claims Rules are procedural rules of court and are not meant to provide guidance on the actions a prevailing party may take after receiving a judgment. A brochure providing this information may be more appropriate for inclusion in the individual county clerk of courts’ websites, as is currently done by Miami-Dade County and Leon County. See How to File a Small Claims Action, Miami-Dade County Clerk of Courts (October 2011), http://miami-dadeclerk.com/library/small_claims/881-Web.pdf; A Guide to Small Claims, Leon County Clerk of Courts (July 1, 2013), http://cvweb.clerk.leon.fl.us/clerk_services/ online_forms/brochures_and_newsletters/ small_claims_b.pdf.

CONCLUSION

Accordingly, we amend the Florida Small Claims Rules as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 2014, at 12:01 a.m.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 7.010. TITLE AND SCOPE

(a) [No Change]

(b) Scope. These rules are applicable to all actions at law of a civil nature in the country courts fewhich thecontain a demand for money or value-ofproperty involved, the value of which does not exceed $5,000 exclusive of costs, interest, and attorneys’ fees. If there is a difference between the time period prescribed by these rules and section 51.011, Florida Statutes, the statutory provision shall govern.

Committee Notes

1978 Amendment. [No Change]

2013 Amendment. Subdivision (b) is amended to clarify that the Florida Small Claims Rules apply to a claim for money or property even when expressed as, or coupled with, a claim for equitable relief. State Farm Mutual Automobile Insurance Company v. Green, 579 So.2d 402 (Fla. 5th DCA 1991).

RULE 7.050. COMMENCEMENT OF ACTION; STATEMENT OF CLAIM

(a) Commencement.

(1) [No Change]

(2) Party Not Represented by Attorney to Sign. A party, individual, or corporation business entity recognized under Florida law who or which has no attorney handling such cause shall sign that party’s statement of claim or other paper and state that party’s address and telephone number, including area code, and may include an e-mail address. However, if the trial court in its discretion determines that the plaintiff is engaged in the business of collecting claims and holds such claim being sued upon by purchase, assignment, or management arrangement in the operation of such business, the court may require that corporation business entity to provide counsel in the prosecution of the cause. A-corporation-may be represented-at-any stage of-the trial court proceedings by an officer-of-the corporation or any employee authorized in writing by an officer of the-corporation. Any business entity recognized under Florida law may be represented at any stage of the trial court proceedings by any principal of the business entity who has legal authority to bind the business entity or any employee authorized in writing by a principal of the business entity. A principal is defined as being an officer, member, managing member, or partner of the business entity.

(b) Parties. The names, addresses, and, if known, telephone numbers, including area code, of all parties or their attorneys, if any, must be stated on the statement of claim. A party not represented by an attorney may include an e-mail address. Additionally, attorneys must include their Florida Bar number on all papers filed with the court, as well as an e-mail address, in compliance with the Florida Rules of Judicial Administration. A statement of claim shall not be subject to dismissal for the failure to include a telephone number.

(c)-(e) [No Change]

Committee Notes

1988-2010 Amendments. [No Change]

2013 Amendment. Subdivision (b) is amended to clarify that a party is required to list an opposing party’s telephone number only if that telephone number is known. Additionally, the rule is amended to clarify that the requirement of including a telephone number is not grounds for dismissal.

Court Commentary

[No Change]

RULE 7.140. TRIAL

(a)-(e) [No Change]

(f) How Conducted. The trial may be conducted informally but with decorum befitting a court of justice. The rules of evidence applicable to trial of civil actions apply but are to be liberally construed. At the discretion of the court, testimony of any party or witness may be presented over the telephone. Additionally, at the discretion of the court an attorney may represent a party or witness over the telephone without being physically present before the court. Any witness utilizing the privilege of testimony by telephone as permitted in this rule shall be treated for all purposes as a live witness, and shall not receive any relaxation of evidentiary rules or other special allowance. A witness may not testify over the telephone in order to avoid either the application of Florida’s perjury laws or the rules of evidence.

Committee Notes

1984-2011 Amendments. [No Change]

FORM 7.322. SUMMONS/NOTICE TO APPEAR FOR PRETRIAL CONFERENCE (CAPTION)

STATE OF FLORIDA — NOTICE TO PLAINTIFF(S) AND DEFENDANT(S) YOU ARE HEREBY NOTIFIED that you are required to appear in person or by attorney at the . in Courtroom #., located at_, on .(date) ., at . m., for a PRETRIAL CONFERENCE before a judge of this court.

IMPORTANT — READ CAREFULLY THE CASE WILL NOT BE TRIED AT THAT TIME. DO NOT BRING WITNESSES — APPEAR IN PERSON OR BY ATTORNEY

The defendant(s) must appear in court on the date specified in order to avoid a default judgment. The plaintiffs) must appear to avoid having the case dismissed for lack of prosecution. A written MOTION or ANSWER to the court by the plaintiffs) or the defendants) shall not excuse the personal appearance of a party or its attorney in the PRETRIAL CONFERENCE. The date and time of the pretrial conference CANNOT be rescheduled without good cause and prior court approval.

A corporation -may be represented at any stage-of-the trial court proceedings by an officer, of the-eorporation or any employee authorized in-writing b;^ an-officer of -the corporation- Any business entity recognized under Florida law may be represented at any stage of the trial court proceedings by any principal of the business entity who has legal authority to bind the business entity or any employee authorized in writing by a principal of the business entity. A principal is defined as being an officer, member, managing member, or partner of the business entity. Written authorization must be brought to the Pretrial Conference.

The purpose of the pretrial conference is to record your appearance, to determine if you admit all or part of the claim, to enable the court to determine the nature of the case, and to set the case for trial if the case cannot be resolved at the pretrial conference. You or your attorney should be prepared to confer with the court and to explain briefly the nature of your dispute, state what efforts have been made to settle the dispute, exhibit any documents necessary to prove the case, state the names and addresses of your witnesses, stipulate to the facts that will require no proof and will expedite the trial, and estimate how long it will take to try the case.

Mediation may take place at the pretrial conference. Whoever appears for a party must have full authority to settle. Failure to have full authority to settle at this pretrial conference may result in the imposition of costs and attorney fees incurred by the opposing party.

If you admit the claim, but desire additional time to pay, you must come and state the circumstances to the court. The court may or may not approve a payment plan and withhold judgment or execution or levy.

RIGHT TO VENUE. The law gives the person or company who has sued you the right to file in any one of several places as listed below. However, if you have been sued in any place other than one of these places, you, as the defendant(s), have the right to request that the case be moved to a proper location or venue. A proper location or venue may be one of the following: (1) where the contract was entered into; (2) if the suit is on an unsecured promissory note, where the note is signed or where the maker resides; (3) if the suit is to recover property or to foreclose a lien, where the property is located; (4) where the event giving rise to the suit occurred; (5) where any one or more of the defendants sued reside; (6) any location agreed to in a contract; (7) in an action for money due, if there is no agreement as to where suit may be filed, where payment is to be made.

If you, as the defendant(s), believe the plaintiffs) has/have not sued in one of these correct places, you must appear on your court date and orally request a transfer, or you must file a WRITTEN request for transfer in affidavit form (sworn to under oath) with the court 7 days prior to your first court date and send a copy to the plaintiffs) or plaintiff s(s’) attorney, if any.

A copy of the statement of claim shall be served with this summons.

DATED at ., Florida, on .(date).

As Clerk of the County Court

FORM 7.336. STATEMENT OF CLAIM FOR REPLEVIN (FOR RETURN OF PERSONAL PROPERTY/WEAPON FROM GOVERNMENT ENTITY)

(CAPTION)

STATEMENT OF CLAIMS FOR REPLEVIN

Plaintiff(s) . sues Defendant(s) .... and alleges:

1. This is an action to recover possession of personal property.

2.The description of the property is:

3.To Plaintiffs best knowledge, information, and belief the value of the property is $ . and its location is

4,Plaintiff is the owner of the claimed property or is entitled to possession of it by virtue of the following source of title, or right_of_possession:

(If interest is based on a written instrument a copy is attached.)

5.The property cannot be released by the defendant without a court order, or the property is wrongfully detained by the defendant who obtained possession by:

6. To Plaintiffs best knowledge, information, and belief, defendant detains property because: .

7. The property has not been taken for any tax, assessment, or fine pursuant to law, nor has it been taken under an execution or attachment against plaintiffs property, or if so taken, it is by law exempt from such taking by the following reference to the exemption law relied upon:

8. Written demand for return of the property was provided to Defendant and [if Defendant is not a municipality] also to the Department of Financial Services at least 90 days prior to the filing of this Complaint. Section 768.28(6)(a), Florida Statutes. A copy of the demand is attached hereto.

9. The property is not contraband, was not the fruit of criminal activity, and is not being held for some evidentiary purposes.

10. The property came into possession of Defendant on or about.(date).

11.Plaintiff has the legal right to possess the property and is not subject to any legal prohibition against such possession.

Pursuant to section 92.525, Florida Statutes, under penalties of perjury, I declare that I have read the foregoing Statement of Claim and the facts stated in it are true.

Plaintiff

NOTE: This form is to be used by those seeking return of personal property (including weapons) taken by a government entity for purposes other than for a criminal investigation, as an incident to arrest, pursuant to a search warrant, or any other seizure for which the Florida Statutes provide a specific procedure for return. Rather, this form is for use by those who seek return of personal property taken for other purposes, such as “safekeeping,” and for which the Florida Statutes provide no procedures.

FORM 7.350. CORPORATE AUTHORIZATION TO ALLOW EMPLOYEE TO REPRESENT CORPORATIONBUSINESS ENTITY AT ANY STAGE OF LAWSUIT

AUTHORIZATION OF CORPORATE QEEICERPRIN CIPAL

.(name). is an employee of .(name of corporation business entity under Florida law that is a party to this action).This individual has authority to represent the corporation business entity at any stage of the trial court proceedings, including mediation.

The undersigned giving the authority is an officer of the corporation a principal of the business entity.

Pursuant to section 92.525, Florida Statutes, under penalties of perjury, I declare that I have read the foregoing Corporate Authorization and that the facts stated in it are true.

Dated: .

SIGNING AUTHORITY:

Print name and title:

(president; — vice-president;—secretary; treasurer)

Address: .

Phone number:

I certify that a copy of this form has been furnished to [list all parties to this action] by .(hand delivery/mail/fax) .on.(date).

Name and title:


text:
    ADVISORY OPINION TO the ATTORNEY GENERAL RE WATER AND LAND CONSERVATION—DEDICATES FUNDS TO ACQUIRE AND RESTORE FLORIDA CONSERVATION AND RECREATION LANDS. Advisory Opinion to the Attorney General re Water and Land Conservation—Dedicates Funds to Acquire and Restore Florida Conservation and Recreation Lands (Financial Impact Statement).
    Nos. SC13-659, SC13-965.
    Supreme Court of Florida.
    Sept. 26, 2013.

      Pamela Jo Bondi, Attorney General and Joslyn Wilson, Assistant Attorney General, Tallahassee, FL, for Petitioner.

      Jon L. Mills of Boies Schiller & Flexner, LLP, Miami, FL; Benjamin F. Diamond of Akerman Senterfitt, Tampa, FL; Timothy McLendon, Gainesville, FL; and Clay Henderson of Holland & Knight, Orlando, FL, for Florida’s Water and Land Legacy, Inc., Sponsor.
   PER CURIAM.

The Attorney General of Florida has requested an opinion from this Court as to the validity of an initiative petition circulated pursuant to article XI, section 3, Florida Constitution, and as to the validity of the corresponding financial impact statement. We have jurisdiction. See art. IV, § 10; art. V, § 3(b)(10), Fla. Const. For the reasons explained below, we conclude that the proposed amendment complies with the single-subject requirement of article XI, section 3 of the Florida Constitution; the ballot title and summary comply with section 101.161, Florida Statutes (2012); and the financial impact statement complies with section 100.371, Florida Statutes (2012). Accordingly, we approve the proposed amendment and financial impact statement for placement on the ballot.

I. BACKGROUND

On April 18, 2013, the Attorney General petitioned this Court for an opinion as to the validity of an initiative petition sponsored by Florida’s Water and Land Legacy, Inc., and circulated pursuant to article XI, section 3 of the Florida Constitution. The Attorney General requested this Court’s opinion as to whether the proposed amendment complies with the single-subject requirement of article XI, section 3, and as to whether the ballot title and summary comply with section 101.161, Florida Statutes (2012). The sponsor has submitted a brief supporting the validity of the initiative petition. No opposing briefs or comments have been submitted to the Court.

The amendment would add a new section 28 to article X of the Florida Constitution. The full text of the proposed amendment states:

SECTION 28. Land Acquisition Trust Fund.—
a) Effective on July 1 of the year following passage of this amendment by the voters, and for a period of 20 years after that effective date, the Land Acquisition Trust Fund shall receive no less than 33 percent of net revenues derived from the existing excise tax on documents, as defined in the statutes in effect on January 1, 2012, as amended from time to time, or any successor or replacement tax, after the Department of Revenue first deducts a service charge to pay the costs of the collection and enforcement of the excise tax on documents.
b) Funds in the Land Acquisition Trust Fund shall be expended only for the following purposes:
1) As provided by law, to finance or refinance: the acquisition and improvement of land, water areas, and related property interests, including conservation easements, and resources for conservation lands including wetlands, forests, and fish and wildlife habitat; wildlife management areas; lands that protect water resources and drinking water sources, including lands protecting the water quality and quantity of rivers, lakes, streams, springsheds, and lands providing recharge for groundwater and aquifer systems; lands in the Everglades Agricultural Area and the Everglades Protection Area, as defined in Article II, Section 7(b); beaches and shores; outdoor recreation lands, including recreational trails, parks, and urban open space; rural landscapes; working farms and ranches; historic or geologic sites; together with management, restoration of natural systems, and the enhancement of public access or recreational enjoyment of conservation lands.
2) To pay the debt service on bonds issued pursuant to Article VII, Section 11(e).
c) The moneys deposited into the Land Acquisition Trust Fund, as defined by the statutes in effect on January 1, 2012, shall not be or become commingled with the General Revenue Fund of the state.

The ballot title for the proposed amendment is “Water and Land Conservation— Dedicates Funds to Acquire and Restore Florida Conservation and Recreation Lands.” The summary for the proposed amendment states:

Funds the Land Acquisition Trust Fund to acquire, restore, improve, and manage conservation lands including wetlands and forests; fish and wildlife habitat; lands protecting water resources and drinking water sources, including the Everglades, and the water quality of rivers, lakes, and streams; beaches and shores; outdoor recreational lands; working farms and ranches; and historic or geologic sites, by dedicating 33 percent of net revenues from the existing excise tax on documents for 20 years.

In addition, on June 5, 2013, the Attorney General petitioned this Court for an opinion as to whether the financial impact statement accompanying this initiative petition complies with section 100.371, Florida Statutes (2012). The financial impact statement, which was prepared by the Financial Impact Estimating Conference, states:

This amendment does not increase or decrease state revenues. The state revenue restricted to the purposes specified in the amendment is estimated to be $648 million in Fiscal Year 2015-16 and grows to $1,268 billion by the twentieth year. Whether this results in any additional state expenditures depends upon future legislative actions and cannot be determined. Similarly, the impact on local government revenues, if any, cannot be determined. No additional local government costs are expected.

No briefs or comments have been submitted in response to the sponsor’s argument that the financial impact statement complies with the statute.

II. ANALYSIS

When this Court renders an advisory opinion concerning a proposed constitutional amendment arising through the citizen initiative process, the Court limits its inquiry to two issues: (1) whether the amendment itself satisfies the single-subject requirement of article XI, section 3, Florida Constitution; and (2) whether the ballot title and summary satisfy the clarity requirements of section 101.161, Florida Statutes. Advisory Op. to the Att’y Gen. re Protect People, Especially Youth, from Addiction, Disease & Other Health Hazards of Using Tobacco, 926 So.2d 1186, 1190 (Fla.2006). This Court reviews the corresponding financial impact statement for compliance with section 100.371, Florida Statutes. Id. at 1194.

A. Single-Subject Requirement

Article XI, section 3, Florida Constitution, sets forth the single-subject requirement for a proposed constitutional amendment arising through the citizen initiative process. The single-subject rule is intended to prevent an amendment from engaging in either of two practices: (a) logrolling; or (b) substantially altering or performing the functions of multiple branches of state government. “A proposed amendment meets this test when it ‘may be logically viewed as having a natural relation and connection as component parts or aspects of a single dominant plan or scheme. Unity of object and plan is the universal test.’ ” Advisory Op. to the Att’y Gen. re Fairness Initiative Requiring Legislative Determination that Sales Tax Exemptions & Exclusions Serve a Public Purpose (Fairness Initiative), 880 So.2d 630, 634 (Fla.2004) (quoting Fine v. Firestone, 448 So.2d 984, 990 (Fla.1984)).

We conclude that the proposed amendment in this case properly “embrace[s] but one subject.” Art. XI, § 3, Fla. Const. The proposed amendment will have only one effect: it will constitutionally establish the proportion of an existing revenue stream that is to be dedicated to an existing trust fund. Because the amendment would make a single change — establishing the percentage of documentary tax revenue credited to the Land Acquisition Trust Fund — and does not contain any unrelated provisions, the amendment does not engage in logrolling.

The amendment also satisfies the prohibition against substantially altering or performing the functions of multiple branches of state government. The proposed amendment does not seek to create a new tax or alter the purpose or management of the Land Acquisition Trust Fund. Because it impacts only the legislative function of determining the amount of tax revenue that is credited to the trust fund, the proposed amendment is similar to the amendment approved in Advisory Opinion to the Attorney General re Funding for Criminal Justice (Criminal Justice), 639 So.2d 972, 973-74 (Fla.1994), which sought to create a trust funded by sales taxes and is even narrower in scope than the amendment approved in Advisory Opinion to the Attorney General — Fee on the Everglades Sugar Production (Everglades Sugar Production), 681 So.2d 1124, 1127-28 (Fla.1996), which proposed to levy a new fee and to direct the use of that new state revenue. As in Criminal Justice and Everglades Sugar Production, the instant amendment addresses “a specific tax designed to produce revenue for which the amendment would allocate uses” and therefore satisfies the single-subject rule. Advisory Op. to the Att’y Gen. re Requirement for Adequate Pub. Educ. Funding, 703 So.2d 446, 450 (Fla.1997).

B. Ballot Title and Summary

Section 101.161(1), Florida Statutes (2012), sets forth the requirements for the ballot title and summary of a proposed constitutional amendment:

The ballot summary of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure.... The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.

When reviewing the validity of a ballot title and summary under section 101.161(1), the Court asks two questions:

First, the Court asks whether “the ballot title and summary ... fairly inform the voter of the chief purpose of the amendment.” Right to Treatment and Rehabilitation for Non-Violent Drug Offenses, 818 So.2d [491, 497 (Fla.2002) ]. Second, the Court asks “whether the language of the title and summary, as written, misleads the public.” Advisory Op. to Att’y Gen. re Right of Citizens to Choose Health Care Providers, 705 So.2d 563, 566 (Fla.1998).

Fairness Initiative, 880 So.2d at 635-36. “[I]t is not necessary to explain every ramification of a proposed amendment, only the chief purpose.” Advisory Op. to the Att’y Gen. re Additional Homestead Tax Exemption, 880 So.2d 646, 651 (Fla.2004) (quoting Carroll v. Firestone, 497 So.2d 1204, 1206 (Fla.1986)).

In this case, the ballot title and summary comply with the respective word limitations and fairly inform the voters of the chief purpose of the proposed amendment. Both the title and summary state that the proposed amendment will dedicate documentary tax revenue to the Land Acquisition Trust Fund. The title includes the language “Dedicates Funds to Acquire and Restore Florida Conservation and Recreation Lands,” and the summary begins with the clause “Funds the Land Acquisition Trust Fund,” describes the uses of the Fund, and explains that the funds will be obtained “by dedicating 33 percent of net revenues from the existing excise tax on documents for 20 years.” The title and summary are straightforward and accurate.

C. Financial Impact Statement

Article XI, section 5(c), Florida Constitution, directs that “[t]he legislature shall provide by general law, prior to the holding of an election pursuant to this section, for the provision of a statement to the public regarding the probable financial impact of any amendment proposed by initiative pursuant to section 3.” Section 100.371(5)(a), Florida Statutes (2012), requires that this financial impact statement address the estimated increase or decrease in any revenues or costs to the state or local governments resulting from the proposed initiative, and section 100.371(5)(c)2 requires that the statement be clear and unambiguous and consist of no more than seventy-five words.

This Court’s review of financial impact statements is narrow. The Court has “limited itself only to address whether the statement is clear, unambiguous, consists of no more than seventy-five words, and is limited to address the estimated increase or decrease in any revenues or costs to the state or local governments.” Advisory Op. to the Att’y Gen. re Referenda Required for Adoption & Amend. of Local Gov’t Comprehensive Land Use Plans, 963 So.2d 210, 214 (Fla.2007). The instant financial impact statement satisfies these requirements.

The financial impact statement is exactly seventy-five words and limited to the subject of the estimated increase or decrease in revenues or costs to the state or local governments. It plainly states that the proposed amendment will not increase or decrease state revenues and estimates the amount of documentary tax revenues that will be dedicated to the Land Acquisition Trust Fund as a result of the proposed amendment. As for costs, the financial impact statement explains — again in plain language — that the Financial Estimating Conference cannot predict how the Legislature will choose to spend or save the documentary tax revenue allocated to the Land Acquisition Trust Fund. See Advisory Op. to the Att’y Gen. re Fla. Growth Mgmt. Initiative Giving Citizens the Right to Decide Local Growth Mgmt. Plan Changes, 2 So.3d 118, 124 (Fla.2008) (“Overall, the financial impact statement is necessarily indefinite but not unclear or ambiguous.”). Accordingly, the financial impact statement complies with section 100.371(5), Florida Statutes (2012).

III. CONCLUSION

The initiative petition and proposed title and summary meet the legal requirements of article XI, section 3, Florida Constitution, and section 101.161(1), Florida Statutes (2012). In addition, the financial impact statement is in accordance with section 100.371(5), Florida Statutes (2012). We therefore approve the proposed amendment and financial impact statement for placement on the ballot.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.


text:
    In re AMENDMENT TO FLORIDA RULE OF APPELLATE PROCEDURE 9.140.
    No. SC13-1492.
    Supreme Court of Florida.
    Sept. 26, 2013.
    Eduardo I. Sanchez, Chair, Appellate Court Rules Committee, Miami, FL; John F. Harkness, Jr., Executive Director, and Heather S. Telfer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Florida Bar’s Appellate Court Rules Committee (Committee) has filed a “fast-track” out-of-cycle report proposing an amendment to Florida Rule of Appellate Procedure 9.140 (Appeal Proceedings in Criminal Cases) in response to recent statutory changes. See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction.

According to the report, chapter 2013-162, Laws of Florida, which became effective July 1, 2013, substituted the terms “intellectual disability” and “intellectually disabled” for the terms “mental retardation” and “mentally retarded” throughout the Florida Statutes. The Committee proposes amending subdivision (c)(l)(I) (Appeals by the State; Appeals Permitted) of rule 9.140 to conform to the statutory changes by replacing the term “mentally retarded” with the term “intellectually disabled.” The Board of Governors of The Florida Bar unanimously approved the proposal.

After considering the proposed amendment and reviewing the relevant legislation, we amend the Florida Rules of Appellate Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendment shall take effect immediately upon the release of this opinion. Because the amendment was not published for comment prior to its adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 9.140. APPEAL PROCEEDINGS IN CRIMINAL CASES

(a)-(b) [No Change]

(c) Appeals by the State.

(1) Appeals Permitted. The state may appeal an order

(A)-(H) [No Change]

(I) finding a defendant mentally retarded intellectually disabled under Florida Rule of Criminal Procedure 3.203;

(J)-(P) [No Change]

(2) — (3) [No Change]

(d)-(i) [No Change]

Committee Notes

[No Change]

Court Commentary

[No Change]

      . Art. V, § 2(a), Fla. Const.

      . All comments must be filed with the Court on or before November 25, 2013, with a certificate of service verifying that a copy has been served on the Committee Chair, Eduardo I. Sanchez, 99 N.E. 4th Street, Suite 800, Miami, Florida 33132-2131, eduardo.i. sanchez@usdoj.gov, and on the Bar Staff Liaison to the Committee, Heather Telfer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300 htelfer@flabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until December 16, 2013, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2012-06.
    No. SC12-2296.
    Supreme Court of Florida.
    Sept. 26, 2013.
    Honorable Jacqueline Hogan Scola, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Miami, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes new instructions 19.7 (Official Misconduct) and 26.9 (Money Laundering). The Committee published both proposals in The Florida Bar News. Two comments were received pertaining to instruction 26.9.

Having considered the Committee’s report and the comments received by the Committee, we authorize the new instructions for publication and use as follows: instruction 19.7 (Official Misconduct) is authorized with minor modification to the Comment section to the instruction, to in-elude a citation to section 838.022(2)(a), Florida Statutes, for the proposition that the term “public servant” does not include a candidate who does not otherwise qualify as a public servant, while instruction 26.9 (Money Laundering) is authorized as proposed.

The new instructions, as set forth in the appendix to this opinion, are authorized for publication and use. New language is indicated by underlining. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, concur.

APPENDIX

19.7 OFFICIAL MISCONDUCT

§ 838.022, Fla. Stat.

To prove the crime of Official Misconduct, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) was a public servant.

2. While a public servant, (defendant) Give as applicable.

a. [falsified] [caused another person to falsify] an [official record] [official document].

b. [concealed] [covered up] [destroyed] [mutilated] [altered] an [official record] [official document] [or caused another person to perform such an act],

c. [obstructed] [delayed] [prevented] the communication of information relating to the commission of a felony that directly involved or affected the public [agency] [entity] served by (defendant).

3.(Defendant) did so with corrupt intent to [obtain a benefit for a person] [cause harm to another].

Definitions.

Fla. Stat. § 838.014.(1).

“Benefit” means gain or advantage or anything regarded by the person to be benefited as a gain or advantage, including the doing of an act beneficial to any person in whose welfare he or she is interested, including any commission, gift, gratuity, property, commercial interest, or any other thing of economic value not authorized by law.

Fla. Stat. § 838.0U(ti.

“With corrupt intent” means acting knowingly and dishonestly for a wrongful purpose.

Fla. Stat. § 838.0U(5).

“Harm” means pecuniary or other loss, disadvantage, or injury to the person affected.

Fla. Stat. § 838.014(6).

“Public Servant” means:

a. Any officer or employee of any state, county, municipal or special district agency or entity;

b. Any legislative or judicial officer or employee;

c. Any person, except a witness, who acts as a general or special magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function.

Fla. Stat. § 838.022(2)(b).

“Official Record” or “Official Document” includes only public records.

Fla. Stat. § 119.011(12).

“Public Records” means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Give if applicable. Fla. Stat. § 775.08(1).

“Felony” means any criminal offense punishable by death or imprisonment in excess of one year.

Lesser Included Offenses

Comment

Committee Note: A candidate for public office or a person who has been elected but has yet to officially assume the responsibilities of public office does not qualify as a public servant. § 838.022(2)(a), Fla. Stat. (2012).

This instruction was adopted in 2013.

26.9 MONEY LAUNDERING

§ 896.101(3)(a), (3)(b), or (3)(c), Fla. Stat.

Give if Fla. Stat. § 896.101(3)(a) is charged:

To prove the crime of Money Laundering, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) [conducted] [attempted to conduct] a financial transaction.

2. The money or property involved in the financial transaction represented the proceeds of (describe the specified unlawful activity listed in Fla. Stat. 895.02 that is alleged in the charging document).

3. (Defendant) knew the money or property involved in the financial transaction represented the proceeds of some form of unlawful activity.

Give ka and/or jb as applicable.

4. a. (Defendant) did so with the intent to promote the carrying on of (describe the specified unlawful activity listed in Fla. Stat. 895.02 that is alleged in the charging document).

b. (Defendant) knew that the transaction was designed in whole or in part

1. to [conceal] [disguise] the [nature] [location] [source] [ownership] [control] of the proceeds of (describe the specified unlawful activity listed in Fla. Stat. 895.02 that is alleged in the charging document);

[or]

2. to avoid a [transaction reporting requirement] [money transmitters’ registration requirement] under state law.

Give if Fla. Stat § 896.101(3)(b) is charged:

To prove the crime of Money Laundering, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [transported] [attempted to transport] [a monetary instrument] [funds].

Give 2a and/or 2b as applicable.

2. a. (Defendant) did so with the intent to promote the carrying on of (describe the specified unlawful activity listed in Fla. Stat. 895.02 that is alleged in the charging document);

[or]

b. (Defendant) knew that the [monetary instrument] [funds] involved in the transportation represented the proceeds of some form of unlawful activity and also knew that such transportation was designed in whole or in part

1. [to conceal] [to disguise] the [nature] [location] [source] [ownership] [control] of the proceeds of (describe the specified unlawful activity listed in Fla. Stat. 895.02 that is alleged in the charging document);

[or]

2. to avoid a [transaction reporting requirement] [money transmitters’ registration requirement] under state law.

Give if Fla. Stat. § 896.101(3)(c) is charged:

To prove the crime of Money Laundering, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [conducted] [attempted to conduct] a financial transaction.

2. The financial transaction involved [property] [proceeds] which [an investigative or law enforcement officer] [someone acting under an investigative or law enforcement officer’s direction] represented as being [derived from] [used to conduct or facilitate] (describe the specified unlawful activity listed in Fla. Stat. 895.02 that is alleged in the charging document).

3. (Defendant) did so with the intent to

Give 3a and/or 3b and/or 3c as applicable.

a. promote the carrying on of describe the specified unlawful activity listed in Fla. Stat. 895.02 that is alleged in the charging document);

[or]

b. [conceal] [disguise] the [nature] [location] [source] [ownership] [control] of the [proceeds] [property believed to be the proceeds] of (describe the specified unlawful activity listed in Fla. Stat. 895.02 that is alleged in the charging document);

[or]

c. avoid a transaction reporting requirement under state law.

Give if applicable. Fla. Stat. § 896.101(A).

It is not a defense to Money Laundering that:

(a) Any stratagem or deception, including the use of an undercover operative or law enforcement officer, was employed.

(b) A facility or an opportunity to engage in conduct in violation of this act was provided.

(c) A law enforcement officer, or person acting under direction of a law enforcement officer, solicited a person predisposed to engage in conduct in violation of any provision of this chapter to commit a violation of this chapter in order to gain evidence against that person, provided such solicitation would not induce an ordinary law-abiding person to violate this law.

Note to Judge: This subsection does not preclude the defense of entrapment. See jury instruction S.6(j).

Definitions.

Fla. Stats. § 896.101(2)(a), § 896.101(2)(p).

“Knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity” means that the person knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under state or federal law, regardless of whether such activity is (describe the specified unlawful activity listed in Fla. Stat. 895.02 that is alleged in the charging document). A “felony” is a crime punishable by death or imprisonment in excess of one year. (Name of crime) is a felony.

Fla. Stat. § 896.101(2)(b).

“Conducts” includes initiating, concluding, or participating in initiating or concluding a transaction.

Fla, Stat. § 896.101(2) (c).

“Transaction” means a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition, and with respect to a financial institution includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, use of a safety deposit box, or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected.

Fla. Stat. § 896.101(2)(d).

“Financial transaction” means a transaction involving the movement of funds by wire or other means or involving one or more monetary instruments, which in any way or degree affects commerce, or a transaction involving the transfer of title to any real property, vehicle, vessel, or aircraft, or a transac-institution which is engaged m, or the activities of which affect, commerce in any way or degree. tion involving the use of a financial

Fla. Stat. § 896.101(2)(f).

“Financial institution” means [an insured bank] [a commercial bank or trust company] [a private banker] [an agency or branch of a foreign bank] [a credit union] [a thrift institution] [a broker or dealer in securities or commodities] [an investment banker or investment company] [a currency exchange] [an operator of a credit card system] [an insurance company] [a dealer in precious metals, stones, or jewels] [a pawnbroker] [a loan or finance company] [a travel agency] [a telegraph company] [the United States Postal Service] [ (list one of the other institutions enumerated in 31 U.S.C. § 5312) ], that is located in Florida.

Fla. Stat. § 896.101(2)(e).

“Monetary instruments” means coin or currency of the United States or of any other country, travelers’ checks, personal checks, bank checks, money orders, investment securities in bearer form or otherwise in such form that thereto passes upon delivery. or otherwise in such form that title

Fla. Stat. § 896.101(2)(h).

“Knowing” means that a person knew; or, with respect to any transaction or transportation involving more than $10,000 in U.S. currency or foreign equivalent, should have known after reasonable inquiry, unless the person has a duty to file a federal currency transaction report, IRS Form 8300, or a like report under state law and has complied with that reporting requirement in accordance with law.

Fla. Stat. § 896.101(3)(d).

“Investigative or law enforcement officer” means any officer of the State of Florida or political subdivision thereof, of the United States, or of any other state or political subdivision thereof, who is empowered by law to conduct, on behalf of the government, investigations of, or to make arrests for, offenses enumerated in this subsection or similar federal offenses.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

      . The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court’s website at www. floridasupremecourt.org/jury-instructions/ instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


author: HANZMAN, MICHAEL, Associate Judge.

text:
    WELLS FARGO BANK, NA, successor by merger to Wells Fargo Home Mortgage, Inc., Appellant, v. Michael J. GIGLIO, et al., Appellees.
    No. 4D12-418.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.
    Jeffrey M. Gano and Elizabeth T. Frau of Ronald R. Wolfe & Associates, P.L., Tampa, for appellant.
    No appearance for appellees.
   HANZMAN, MICHAEL, Associate Judge.

Appellant, Wells Fargo Bank, NA (“Wells Fargo”), the Plaintiff in this foreclosure action, seeks reversal of the trial court’s order denying its requests to: (a) approve a dismissal of the case; (b) set aside the previously entered final judgment; (c) cancel the notice of lis pendens-, and (d) direct the clerk to return the original loan documents upon which the foreclosure action was based. Wells Fargo sought this relief because on the eve of the foreclosure sale the pro se defendant, Michael J. Giglio (“Giglio”) delivered — and Wells Fargo accepted — funds sufficient to reinstate the mortgage, thereby obviating the need to sell the collateral or continue with the litigation. Put simply, Giglio cured the default and the parties settled their dispute, an outcome the law favors. See, e.g., Sun Microsystems of Cal., Inc. v. Eng’g and Mfg. Sys., C.A., 682 So.2d 219, 220 (Fla. 3d DCA 1996) (“The public policy of the State of Florida, as articulated in numerous court decisions, highly favors settlement agreements among parties and will enforce them whenever possible.”).

Wells Fargo’s motion relied upon section 702.07, Florida Statutes (2011), as well as Florida Rule of Civil Procedure 1.540(b)(5). We have held that section 702.07 “standing alone does not create an independent, substantive right to vacate a judgment of foreclosure for any reason,” and that the statute must be read together with Rule 1.540 which “provides the avenue” for such relief. See Toler v. Bank of Am. Nat’l Ass’n., 78 So.3d 699, 702, 703 (Fla. 4th DCA 2012). The pertinent part of Rule 1.540(b)(5) relied upon by Wells Fargo requires the movant to demonstrate that “it is no longer equitable that the judgment or decree should have prospective application.” Fla. R. Civ. P. 1.540(b)(5). Subsection (b)(5) was designed to provide “ ‘extraordinary relief in exceptional circumstances and is to be narrowly construed.” Pure H2O Biotechnologies, Inc. v. Mazziotti, 937 So.2d 242, 245 (Fla. 4th DCA 2006) (citation omitted).

As one would expect, relief under Rule 1.540(b)(5) is typically sought by a party against whom the subject judgment is entered — not, as in this case, the beneficiary of the judgment. But nothing in the rule suggests that Wells Fargo lacked an ability to seek vacatur of a judgment it received, relief Giglio did not oppose. The trial court nevertheless concluded that: (a) Wells Fargo’s motion failed to allege sufficient grounds under Rule 1.540; (b) the clerk could not return the original note because it was cancelled and incorporated into the final judgment; and (c) that as a result of the final judgment, Wells Fargo’s request for dismissal was moot. As the trial court had vacated the foreclosure sale, its order denying the related relief requested left the parties in legal limbo. A final judgment and lis pendens remained of record even though the mortgage had been reinstated, and Wells Fargo was denied possession of its original loan documents, thereby impeding its ability to seek relief in the event of a further default.

We hold that the trial court, having vacated the foreclosure sale, abused its discretion in refusing to grant the related collateral relief requested by Wells Fargo, which refusal prevented the parties from concluding their settlement. See Toler, 78 So.3d at 701 (“An order denying a motion for relief from judgment is reviewed for an abuse of discretion.”). The trial court clearly had jurisdiction to consider Wells Fargo’s Rule 1.540(b)(5) motion; and in light of the parties’ settlement — a result the law seeks to encourage — the relief requested should have been granted. See Wells Fargo Bank, N.A. v. Lupica, 36 So.3d 875 (Fla. 5th DCA 2010).

The trial court’s January 13, 2012 Order Vacating Sale and Denying Remaining Motions is reversed to the extent it denied Wells Fargo’s requested relief, and the matter is remanded with instructions that the trial court enter such orders necessary to effectuate the parties’ settlement including an order which: (a) vacates the final judgment; (b) directs the clerk to return all original loan documents to Wells Fargo; (e) cancels the lis pendens; and (d) dismisses the case without prejudice.

GROSS and DAMOORGIAN, JJ., concur.

      . The foreclosure sale took place and was subsequently vacated by the trial court at Wells Fargo’s request.

      . We do not hold — or suggest — that a trial court is always obligated to vacate its judgment or orders at the request of settling parties. In many cases there may be compelling reasons not to do so, particularly if the judgment or order contains findings of fact or conclusions of law with implications that may reach beyond the case at hand. We merely hold that this case does not fall into that category and that the trial court abused its discretion under the facts presented.


author: CLARK, J.

text:
    STATE of Florida, Appellant, v. Paul A. PETRONI, Appellee.
    No. 1D12-0884.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Rehearing Denied Oct. 25, 2013.

      Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant.
    Wm. J. Sheppard and Elizabeth L. White of Sheppard, White & Kachergus, P.A., Jacksonville, for Appellee.
   CLARK, J.

This is an appeal by the State of Florida from an order suppressing cocaine found during a search of Paul A. Petroni’s house. Petroni also cross-appeals from an order denying in part his motion to suppress statements he made to police. We reverse the trial court’s order suppressing the cocaine and affirm its order denying in part Petroni’s motion to suppress statements.

I.

Petroni’s house was searched pursuant to a warrant. The affidavit in support of the search warrant detailed that a confidential informant had twice, “within the past fifteen (15) days” purchased cocaine from Petroni. The affiant, Detective C.A. Bates, described the buys as “controlled.” On the first buy, he explained that he searched the informant and his vehicle before the buy to make sure he and the vehicle were clean; Bates then followed/tailed the informant to Petroni’s home. Bates averred that another detective, Detective Torres, saw the informant “walk towards the front door of the Premises,” saw Petroni arrive at the home on a motorcycle, and then watched Petroni “enter the front door of the Premises.” Shortly thereafter, Torres saw Petroni and the informant “exit the front door of the Premises.” Afterwards, the informant met Bates at a pre-arranged location and “turned over a plastic bag that contained an off-white substance believed to be cocaine”; Bates searched the informant and his vehicle again, finding no further contraband. The substance field-tested positive as cocaine. Further, Bates averred the informant stated that while obtaining the cocaine, Petroni had told the informant, “in substance, that Petroni has a source of cocaine supply and therefore Pe-troni maintains a supply of trafficking amounts of cocaine for sale.”

For the second buy, Bates detailed the same search procedure; this time another detective accompanied the informant to Petroni’s home. That detective then watched the informant “walk through a gate attached to the side of the Premises.” Shortly thereafter, Bates averred that the detective saw Petroni and the informant exit from that gate; the informant returned to the vehicle and the two met Bates at the pre-selected location. Bates averred the informant gave him “a plastic bag that contained an off-white substance”; Bates again searched the informant, finding no controlled substances. The informant claimed “he met Petroni on a deck right outside Petroni’s bedroom.”

Given these facts, Bates averred that he believed additional cocaine was present in the home, and sought a search warrant for cocaine. A judge found probable cause, signed the warrant, and police ultimately recovered forty-two grams of cocaine during the search of Petroni’s home.

Petroni moved to suppress the cocaine through, pertinent to this appeal, two separate motions. He first argued the affidavit supporting the search warrant “intentionally or recklessly misrepresent[ed] certain factual matters,” and probable cause would not exist with their redaction. Petroni explained other material was “intentionally or recklessly omitted from the affidavit.” And finally, he claimed the affidavit included false statements as well. Petroni titled his motion, Franks, referring to the United States Supreme Court case, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

Franks permits defendants to attack a warrant where police intentionally lie or misstate information material to the probable cause determination in the affidavit supporting the warrant in order to deceive the judge into issuing the warrant. Id. at 171-72, 98 S.Ct. 2674. The “central problem” in Franks concerned these falsehoods or misstatements “that may be said to have resulted in deception.” See id. at 168-71, 98 S.Ct. 2674; Johnson v. State, 660 So.2d 648, 655-56 (Fla.1995) (citing United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990)). Franks has a “limited scope” and only applies where there are non-conclusory “allegations of deliberate falsehood or of reckless disregard for the truth” — “negligence or innocent mistake are insufficient.” Franks, 438 U.S. at 168, 171, 98 S.Ct. 2674. Second, the defendant must show that the affidavit, without the deliberate falsifications, fails to provide probable cause. Id. at 168, 171-72, 98 S.Ct. 2674. Only when a defendant shows that the officer was attempting to deceive the judge with false information and the remaining allegations are insufficient to support a probable cause finding, is a full hearing even necessary. Id.

Franks, however, did not concern omissions made to a judge in an attempt to influence the judge’s action; it was limited to deceptive falsehoods and misstatements. The Florida Supreme Court considered the “fundamentally ... different problem” of omissions in affidavits in Johnson. As applied to omissions, defendants must show: (i) the omitted material, if added, would have eviscerated probable cause, and (ii) “intentional or reckless police conduct that amounts to deception.” Johnson, 660 So.2d at 656. Absent a preliminary showing of both the deception prong and the materiality prong, the court should summarily deny a Franks motion. Id.

Omissions, the court points out, may be wholly reasonable, “in the sense that they exclude material [that] police in good faith believed to be marginal, extraneous, or cumulative. Such an exclusion is a valid and necessary part of the warrant process.” Id. Additionally, parties reasonably may disagree as to the import and effect of the large amount of information that necessarily will be omitted in the warrant process, since police routinely collect far more information than goes into the affidavit. Id. (citing 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 4.4(b) (2d ed. 1987 Supp.1995)); see also id. (quoting with approval United States v. Colkley, 899 F.2d 297 (4th Cir.1990)).

In short, to meet the Franks test, police conduct must rise to the level of hoodwinking or bilking, duping the issuing judge or magistrate into signing the warrant; that is, an allegation the affiant had information she knew should be included in the affidavit and failed to include it either intentionally or recklessly with the idea the omission would then sway the issuing judge or magistrate in her favor. See id. at 655-56.

Petroni argues the following misrepresentations and omissions meet this rigorous standard:

In the affidavit, the affiant represents that an informant reported that “Petroni told the informant, in substance, that Petroni has a source of cocaine supply and therefore Petroni maintains a supply of trafficking amounts of cocaine for sale.” ...
However, in truth, as the affiant subsequently testified at deposition, the informant in fact did not observe any further supply of cocaine in the residence on the occasion in question and was not told by Mr. Petroni that additional cocaine was in the residence. Rather, the informant told the affiant merely that he had at some unspecified time in the past observed cocaine present in the residence.

In addition, Petroni claimed police intentionally or recklessly omitted that: (i) the quantities of cocaine in the buys were small, only 3.7 grams; (ii) the informant had not been previously used and was never determined to be reliable; (iii) the buys were not controlled; and, (iv) the informant had observed quantities of cocaine at the home only in the past.

Finally, Petroni also claimed the affidavit was false in one respect. Contrary to the affidavit, Torres testified she had not actually seen Petroni or the informant enter the house during the first buy. Torres testified she “assumed” the men entered because after following the informant there, she watched Petroni arrive at the house on his motorcycle and “walk[j up towards the front door of his residence;” she then saw the two men “exit the residence together.”

In error, the trial court suppressed the cocaine pursuant to Franks, concluding that adding the omitted information and removing the false statement would defeat probable cause and that the combination of omissions regarding the amount of drugs and whether drugs were actually seen meant the issuing judge could not determine whether the information was stale. We reverse because Franks was not even implicated.

As a determinative matter, Petroni did not show, allege, or argue the omissions or the false statement amounted to deceptive behavior on the part of the police intended to sway the judge. Johnson demands a showing of this misconduct — without it, the court is not even required to hold an evi-dentiary hearing. Johnson, 660 So.2d at 656. Instead, the trial court focused on the materiality prong and how, with Petro-ni’s additions, there was a substantial possibility the issuing judge would not have found probable cause. Essentially, whether the officers intended any misconduct to sway the issuing judge was ignored. Pe-troni’s failure in this respect is fatal to his Franks claim.

Certainly, the affidavit could have included additional material. But that is not the Franks standard — nor should it be. Franks was meant to deal with a very specific situation: intentional or reckless police conduct amounting to deception. Were it otherwise, courts would face “endless rounds of Franks hearings.” Johnson, 660 So.2d at 656 (quoting with approval Colkley, 899 F.2d at 301).

Petroni needed to show police cherry-picked specific information, while leaving out other pertinent, material information, all the while intending that the issuing judge would thus be duped into signing the warrant she otherwise would not have signed. Instead, Petroni’s arguments amount to a claim that the issuing judge erred in finding the affidavit contained sufficient facts to find probable cause. In fact, Petroni based his second motion to suppress the cocaine on this very probable cause argument; the trial court mooted this motion after granting the Franks motion. Upon remand, Petroni is entitled to have this probable cause motion determined on the merits. We make no suggestion as to the proper resolution of that issue.

II.

Petroni also cross-appeals the trial court’s denial of his motion to suppress “any and all statements.” Petroni seeks to reverse the trial court’s refusal to suppress any statements he made after the search and post-Miranda warnings; he claims they were tainted by the illegal search. First, based on our resolution of the State’s appeal, the search was not illegal. Second, and importantly, even if this Court had determined the search was illegal, we would decline to entertain Petroni’s argument on the merits. In the trial court, Petroni’s counsel clearly conceded, “whatever statements the State intends to submit before [Petroni] was Mirandized can’t be used” — but, “after Miranda, it’s fair.”

To preserve an argument for appeal, an appellant must timely and contemporaneously object at the trial level, on a stated legal basis, and then raise that specific contention again on appeal. Harrell v. State, 894 So.2d 935, 940 (Fla.2005). Petroni’s only contention at trial was that any 'pre-Miranda statements should be excluded — “after Miranda, it’s fair.” This Court will not, for the first time on appeal, entertain an argument which could have— and should have — been raised at the trial level. See id.

III.

Accordingly, the portion of the trial court’s order granting Petroni’s motion to suppress on Franks grounds is REVERSED, and this cause is REMANDED for further proceedings. As to the cross-appeal, we AFFIRM the trial court’s decision.

MARSTILLER and SWANSON, JJ., concur.

      . Because Petroni's Franks claim fails on this ground, it is unnecessary for us to address the materiality prong. We express no comment as to what the proper resolution of that question is or should have been.


text:
    Alberto HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2202.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 2013.
    Rehearing Denied Oct. 23, 2013.
    Alberto Hernandez, in proper person.

      Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before LAGOA and FERNANDEZ, JJ, and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Cheetham v. Brickman, 861 So.2d 82 (Fla. 3d DCA 2003).