author: LAGOA, J.

text:
    Omar Ricardo BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3264.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2014.
    Rehearing Denied Dec. 30, 2014.

      Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.
   LAGOA, J.

Omar Ricardo Brown (“Brown”) appeals from the trial court’s denial of his motion to suppress and his subsequent conviction. Because we find that the trial court erred in its denial of Brown’s motion to suppress, we vacate the judgment and sentence and remand with directions that the motion be granted.

I. FACTUAL AND PROCEDURAL HISTORY

Brown was charged under section 812.13(2)(a), Florida Statutes, with armed robbery of the Beachcomber Jewelry Store located in Key West, Florida. Witnesses of the robbery described one robber wearing a beanie hat with blue gloves. Another robber was seen using a heavy object to break three glass cases containing jewelry. The getaway vehicle was described as a red vehicle.

Around the time of the robbery, Brown’s former girlfriend, Maria Terrell, reported her white car stolen by Brown. Officer Diaz responded to the call but discontinued the investigation when Terrell advised Officer Diaz that the car was not stolen, and that she did not wish to press charges. This information was then relayed to Officer Zamora and other officers via the police station’s radio channel, worn on the officers’ person. At the suppression hearing, Officer Zamora testified that he knew that the reportedly stolen vehicle had been returned and no longer required further investigation. Officers Zamora and Barrios nonetheless headed to Brown’s residence after hearing the report of Terrell’s stolen white car. Officer Zamora testified that he went to Brown’s residence based on a suspicion that the stolen car and the robbery were related. Officer Zamora testified that, upon arrival at Brown’s residence, he had no articulable reason, nor probable cause, to believe that Brown had robbed the jewelry store. Officer Barrios also testified that by the time he and Officer Zamora arrived at Brown’s house they knew the reported stolen car had been returned.

The entrance to Brown’s residence is separated from the community by two fences and is not in a common area accessible to the community. The first fence stands four feet tall at the front of the property, while the second fence, directly behind the first, stands six feet tall and closes off the side yard of the property. Brown’s mailbox is located outside of the first fence. In order to reach Brown’s front door, an individual must walk through both gates. On the day in question, the first gate was slightly ajar. Brown testified that he did not expect uninvited individuals to be in his side yard that led to the front door, and photographs of Brown’s residence show the existence of several “No Trespassing” signs posted on Brown’s outer fence. The officers at the scene, including Officer Zamora, testified that the items subsequently seized could not be seen from outside the fenced area, even if the first gate was slightly ajar.

On the day in question, police officers went through both of Brown’s unlocked fences and knocked on Brown’s front door in order to discuss Brown’s whereabouts. During a conversation with the home’s residents, the officers noticed gloves laying on a small table located outside by the front door. The officers then heard Brown enter the residence through a window on the side of the residence and went to investigate. Brown immediately told the police to get off of his property.

When the officers returned to the front door, the gloves had disappeared. Officer Zamora began to look for the gloves near the outside table. During his search, Officer Zamora looked over the table and found a hammer lodged between the fence and the table. The hammer was subsequently seized by the officer prior to obtaining a search warrant.

Hours later, a search warrant was secured and evidence was recovered from Brown’s residence linking him to the robbery; the hammer that was obtained prior to the search warrant was not linked to the robbery.

Brown moved to suppress, arguing that the officers entered the curtilage of his residence without probable cause. After the suppression hearing, the trial judge entered a written order denying Brown’s Motion. In the order, the trial judge found that the officers’ entry into the curti-lage of Brown’s residence was part of a lawful investigation conducted “in good faith to complete the pending” car theft investigation, that the hammer and gloves were in “plain view” when the officers observed them, and that the warrant, which was based on those observations, was therefore valid. The trial court did not make a legal finding with respect to Brown’s privacy rights in the curtilage surrounding his home. Following a jury trial, Brown was found guilty and sentenced to life in prison. This appeal followed.

II. STANDARD OF REVIEW

A trial court’s ruling on a motion to suppress comes to an appellate court “clothed with the presumption of correctness.” McNamara v. State, 357 So.2d 410, 412 (Fla.1978); see also State v. Triana, 979 So.2d 1089 (Fla. 3d DCA 2008). While appellate courts must give great deference and a presumption of correctness to a trial court’s factual findings if the facts are supported by “competent substantial evidence,” the Florida Supreme Court laid out a two-step approach for appellate courts to use when reviewing mixed questions of law and fact that determine constitutional rights: (1) defer to the trial court on questions of historical fact and (2) conduct a de novo review of the “mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment.” Connor v. State, 803 So.2d 598, 605-08 (Fla.2001); see Wyche v. State, 987 So.2d 23, 25 (Fla.2008); State v. Nowak, 1 So.3d 215, 217 (Fla. 5th DCA 2008); State v. Lennon, 963 So.2d 765, 768 (Fla. 3d DCA 2007).

III. ANALYSIS

On appeal, Brown argues that the trial court erred in dismissing his motion to suppress. Brown contends that suppression was proper as he had an actual, subjective expectation of privacy in the curti-lage of his home and the officers entered the curtilage of his residence without probable cause or any applicable exceptions to the warrant requirement for a search. The State, however, argues that two exceptions to the warrant requirement apply: (1) the officers’ entry onto the property and subsequent actions were part of a valid “knock and talk,” and (2) the items seized by the officers fell within the plain view doctrine. We agree with Brown and will address each point separately.

A. ENTRY INTO THE CURTILAGE

We first turn to a significant threshold issue, which the trial court failed to address: whether the curtilage, the area immediately surrounding Brown’s home, constitutes an extension of his home, thereby affording it the same Fourth Amendment protections as the home itself. There are four factors that determine the boundaries of the curtilage:

[T]he proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). “[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity .... ” Florida v. Jardines, — U.S. -, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)).

Here, it is undisputed that the officers entered the area immediately surrounding and associated with Brown’s home, that this area was enclosed by two layers of fencing (each with its own gate), that this area was used as the front and side yard of Brown’s residence, and that several “No Trespassing” signs were posted on the outside fence. Pursuant to Jardines, the area entered by the officers was the curtilage of Brown’s residence and therefore subject to the same Fourth Amendment protections as Brown’s house itself. See Jardines, 133 S.Ct. at 1414 (holding that “area ‘immediately surrounding and associated with the home’ — what our cases call the curtilage— [is] ‘part of the 'home itself for Fourth Amendment purposes’ ” (quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984))).

B. BROWN’S PRIVACY EXPECTATION

Because the area entered by the officers constituted Brown’s curtilage and is part of the “home itself for Fourth Amendment purposes,” the next question we must address is whether Brown’s privacy right in his home was unlawfully infringed. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (finding that a search occurs within the meaning of the Fourth Amendment when government action infringes an individual’s justifiable or reasonable expectation of privacy). A search violates an individual’s Fourth Amendment rights only if: (1) a defendant demonstrates that he or she had an actual, subjective expectation of privacy in the property searched; and (2) a defendant establishes that society would recognize that subjective expectation as objectively reasonable. Lennon, 963 So.2d at 770 (quoting Hicks v. State, 929 So.2d 13, 16 (Fla. 2d DCA 2006)).

In Fernandez v. State, 63 So.3d 881 (Fla. 3d DCA 2011), this Court held that a defendant established his subjective expectation of privacy in the curtilage of his home by “[pjutting up fences, and affirmatively taking express steps to exclude the public or other persons from using the area, seeing into it, or gaining access to the area ....” Id. at 833 (quoting Ratdiff v. State, 783 So.2d 1099, 1101 (Fla. 5th DCA 2001)). Here, the officers testified that the curti-lage to Brown’s residence could not be seen from outside the two fences, and that the officers only saw into the curtilage when they took the step of opening the gates to pass through them. Additionally, Brown posted three “No Trespassing” signs on the outside fence, and Brown’s mailbox was located on the outside of the first fence. Because the curtilage surrounding Brown’s home was not open or viewable to the public and not a place Brown would have reasonably expected the public to enter, we conclude that Brown exhibited an actual, subjective expectation of privacy that society is prepared to recognize as reasonable.

C. VALID KNOCK AND TALK

Notwithstanding Brown’s actual, subjective expectation of privacy, the State argues that the trial court’s order should be affirmed because the officers’ conduct constituted a valid “knock and talk.” The State cites to several cases, including Wysong v. State, 614 So.2d 670 (Fla. 4th DCA 1993). In Wysong, officers ignored “No Trespassing” signs and walked up to the gateless, front door entry to discuss a tip of drug activity. The Fourth District Court of Appeal found that the officers’ actions constituted a lawful “knock-and-talk.” Id. This case, however, is distinguishable from Wysong. In Wysong, the front door was fully open to public access. In this case, however, Brown’s residence was completely fenced and gated, had several “No Trespassing” signs, and his mailbox was located on the outside of the first fence. We have already concluded that Brown held an actual, subjective expectation of privacy, and that his expectation was reasonable.

The State’s argument fails to recognize that while the officers were free to approach the outside gate and fence to conduct a “knock and talk,” the area inside both the outside fence and the second fence surrounding Brown’s side yard has the same Fourth Amendment protections as Brown’s house. See Ferrer v. State, 113 So.3d 860 (Fla. 2d DCA 2012); Fernandez, 63 So.3d at 883-84.

While this Court has found that a policeman may enter the curtilage surrounding a home in the same way as a salesman or visitor could, no such person would reasonably go through both a gated four-foot fence and a gated six-foot fence, surrounded by several “No Trespassing” signs in order to conduct business with the residents. This Court further finds, contrary to the trial court’s order, that the officers did not enter the property in good faith to complete the pending investigation. Indeed, the officers testified that they knew that the investigation into the allegedly stolen vehicle was complete and that the allegedly white stolen vehicle did not match the description of the red getaway vehicle. Lastly, the officers testified that they had no reasonable or articulable basis for questioning Brown about the jewelry store robbery.

D. PLAIN VIEW DOCTRINE

Notwithstanding Brown’s expectation of privacy in the curtilage to his residence, the State argues that an officer may enter a protected area without a warrant where the evidence is in “plain view.” We conclude, however, that the plain view exception is not applicable under the circumstances of this case.

In order to satisfy the plain view exception, three elements are required: 1) the officer must be in a place where he has a lawful right to be; 2) during his presence the officer inadvertently comes upon an item which is openly visible; and 3) it is immediately apparent to the officer that the object constitutes evidence of a crime. M.L. v. State, 47 So.3d 911, 912 (Fla. 3d DCA 2010). If an object is presently in plain view, no invasion of privacy will take place from either its observation or its seizure, so long as the police are in an area, lawfully. Horton v. California, 496 U.S. 128, 133, 137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

Under the plain view exception, it is critical that the officer be in the constitutionally protected area lawfully before recovering items thought to be instrumen-talities of a crime. State v. Rickard, 420 So.2d 303 (Fla.1982). In Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Supreme Court noted that the ‘plain view exception’ may be used if the police have a warrant to search an area and come across some item of incriminating character. If an officer has no prior justification for being in a constitutionally protected area, however, the uncovering of any incriminating evidence is invalid as an illegal seizure. Id.; see also Rimmer v. State, 825 So.2d 304 (Fla.2002) (stating that the police may seize items in plain view without a warrant as long as the officers are lawfully in a location where the item is observed and have probable cause to believe the item evidences a crime). For the reasons previously discussed, the officers were not lawfully within the curtilage to Brown’s house. Indeed, the officers testified that they saw nothing from outside of Brown’s property which justified their initial warrantless entry into the curtilage. As a result, the plain view exception to a warrantless search cannot apply.

The case of Davis v. State, 834 So.2d 322 (Fla. 5th DCA 2003), is instructive. In that case, the officers entered the residence of a home believed to have been burglarized, but “once the exigency ended,” the Fifth District determined that the police could no longer lawfully be in the residence, absent a warrant. Id. at 328. In Davis, instead of leaving the premises, the police seized items, including firearms and jewelry from the premises, arguing the plain view exception based on a suspicion that the items were related to criminal activity. Id. The Fifth District reversed the denial of the motion to suppress by the trial court, finding that a “suspicion that the items were connected with criminal activity ... is not sufficient for their warrantless seizure” but instead is a violation of the appellant’s Fourth Amendment rights. Id. at 328. Here, because Brown erected two fences to keep the public away from his premises, and also placed several “No Trespassing” signs along his property, his subjective expectation of privacy is apparent.

IV. CONCLUSION

Because the officers unlawfully entered the curtilage of Brown’s residence and Brown exhibited an actual, subjective expectation of privacy that society is prepared to recognize as reasonable, we vacate the judgment and sentence and remand with instructions that the trial court enter an order suppressing the evidence and for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . " ‘[immediately apparent' means that ‘at the time the police view the object to be seized, they must have probable cause to be-Heve that the object is contraband or evidence of a crime.’ " M.L., 47 So.3d at 913 (quoting Jones v. State, 648 So.2d 669, 678 (Fla.1994)).


source: Caselaw Access Project

author: FERNANDEZ, J.

license: Public Domain

text:
    Gregg M. HARDEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3239.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.
    Rehearing Denied Jan. 13, 2015.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Gregg M. Harden appeals his conviction for two counts of attempted robbery and one count of furnishing false information to a law enforcement officer during an investigation. Because the trial court committed per se reversible error when it failed to conduct a Faretta hearing after Harden made several unequivocal requests to represent himself, we reverse and remand for a new trial. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Harden filed numerous motions and pleadings with the trial court waiving his right to counsel and requesting self-representation. Harden’s counsel also confirmed Harden’s desire to represent himself several times during the proceedings. The trial court chose not conduct a Faretta hearing on Harden’s requests, but instead postponed the Faretta hearing until after the discovery process was complete.

Harden also filed multiple motions for speedy trial, notice of expiration motions, and demands for discharge under the Florida Speedy Trial Rule. All of these motions were denied either on the merits or because Harden’s appointed counsel did not adopt them.

On July 5, 2011, sixteen months after his initial request for self-representation, the trial court conducted a Faretta hearing and concluded that Harden was competent to represent himself. Harden represented himself at trial and was convicted on two counts of attempted robbery and one count of furnishing false information to a law enforcement officer during an investigation.

The Sixth Amendment grants a defendant the right to proceed without counsel when he voluntarily and intelligently elects to do so. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. The right to self-representation applies at any crucial stage in the proceedings. See Kearse v. State, 858 So.2d 348 (Fla. 1st DCA 2003) (holding that the defendant had the right to represent himself during pre-trial suppression hearing).

A defendant’s request for self-representation must be unequivocal. See Tennis v. State, 997 So.2d 375, 378 (Fla.2008). Once a defendant makes an unequivocal request for self-representation, the trial court is obligated to hold a Faret-ta hearing to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel. Id. The failure of a trial court to hold a Faretta hearing to determine whether the defendant could represent himself is per se reversible error that entitles a defendant to a new trial. Id. at 379.

Neither the Sixth Amendment nor the Florida Constitution provide a right to hybrid representation. See Logan v. State, 846 So.2d 472, 474-75 (Fla.2003). Thus, a pro se demand for speedy trial that has not been adopted by the defendant’s counsel cannot be entertained on the merits. Sams v. State, 849 So.2d 1172, 1174 (Fla. 3d DCA 2003).

Harden made several unequivocal requests for self-representation as evidenced by his repeated filings to dismiss his appointed counsel and represent himself. After these requests, but prior to the Faretta hearing being held, there were several crucial stages in the proceedings over a period of sixteen months. Each crucial stage presented a missed opportunity for Harden to represent himself Because the trial court failed to hold a Faretta hearing within a reasonable time following Harden’s initial and subsequent unequivocal requests for self-representation it committed per se reversible error. Thus, Harden is entitled to a new trial.

Reversed and remanded.


author: SALTER, J.

text:
    William KRITCHMAN, etc., et al., Appellants/Cross-Appellees, v. Hunter WOLK, Appellee/Cross-Appellant.
    Nos. 3D12-2457, 3D12-2977.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2014.
    Rehearing Denied Dec. 29, 2014.

      Gunster, Yoakley & Stewart and Jack J. Aiello and John C. Moran, West Palm Beach; Heller Waldman, Glen H. Wald-man and Eleanor T. Barnett, Coconut Grove; Akerman and Gerald B. Cope, Jr., Miami, for appellants/cross-appellees.
    Kluger, Kaplan, Silverman, Katzen & Levine and Erin E. Bohannon, Miami, for appellee/cross-appellant.
    Before LAGOA, SALTER and EMAS, JJ.
   SALTER, J.

William Kritchman and Wells Fargo, N.A., appeal a final judgment against them, jointly and severally, in favor of the plaintiff below, Hunter Wolk. Mr. Wolk cross-appeals the judgment insofar as it denied relief on two of the four counts of his second amended complaint. The cases arise from a magnanimous settlor’s, Mrs. Lola Kritchman’s, gifts to pay certain educational expenses of her first cousin’s grandson, Mr. Wolk. Mr. Kritchman is the late Mrs. Lola Kritchman’s son. Upon her death, Mr. Kritchman became co-trustee (with Wells Fargo) of her inter vivos trust and the personal representative of her estate.

We affirm the trial court’s rulings relating to the co-trustees’ breach of the Fourth Amended and Restated Lola Kritchman Revocable Trust Agreement (Trust Agreement) and the directive for disgorgement of attorney’s fees and costs paid from the Trust to, or for the benefit of, the co-trustees. We reverse the final judgment insofar as it determined that the Trust or Mrs. Kritchman’s Estate was liable for Mr. Wolk’s possible and future graduate school expenses; and we remand with directions for the entry of an amended final judgment.

Factual and Procedural Background

Mrs. Lola Kritchman created a revocable trust and amended it repeatedly. The Trust Agreement at issue here was entered into in December 2007. The co-trustees were Mrs. Kritchman and Wells Fargo. Article I.A. of the Trust Agreement specified that, during Mrs. Kritch-man’s lifetime, the Trustee was to “pay such sums from principal as [Mrs. Kriteh-man] may direct at any time.” The record establishes that Mrs. Kritchman directed Wells Fargo to make payments for Mr. Wolk’s private school tuition for seven years, through his high school graduation in Miami in 2008. Mr. Wolk then entered Yale University as an undergraduate, and Mrs. Kritchman’s Trust funded his tuition, room, and board for his freshman and sophomore years.

During Mr. Wolk’s sophomore year, on April 17, 2010, Mrs. Kritchman signed and delivered a letter to her trust officer at Wells Fargo stating:

As you know, I have agreed to pay for Hunter’s college education at Yale, as I have for the last 2 years. Thank you for your assistance with the logistics. He will be beginning his junior year in September 2010 and his senior year in 2011. Please make arrangements so that his costs will be paid for those 2 years as well. The cost for his junior year is forty nine thousand eight hundred dollars, which you will see when the school sends its documentation in the next month or so.
Thank you for taking care of this on my behalf.
Sincerely,
Us/ Mrs. Lola Kritchman]

Mrs. Kritchman’s written directive plainly and unambiguously:

• Reminded Wells Fargo that she had paid Mr. Wolk’s educational expenses at Yale for the past two years (which was accomplished with funds of the Trust remitted by Wells Fargo to the university);
• Notified Wells Fargo that Mr. Wolk would begin his junior year at Yale in September 2010, five months after the April letter was delivered to Wells Fargo;
• Directed Wells Fargo to “[pjlease make arrangements so that his costs will be paid for those two years [junior and senior] as well;
• Estimated the cost of his junior year would be $49,800.00; and
• Advised that a bill documenting his tuition cost would be forthcoming in the next month or so.

Wells Fargo received this written directive and, consistent with its express terms, Wells Fargo paid Mr. Wolk’s educational expenses at Yale for the fall semester of his junior year in September of 2010. But while choosing to comply with this portion of Mrs. Kritchman’s written directive, Wells Fargo failed to comply with the remainder of its express terms, which required Wells Fargo to “make arrangements so that his costs will be paid for those two years [junior and senior] .... ” (Emphasis supplied).

Notwithstanding this directive, Mr. Wolk’s Yale tuition, room, and board were not paid by Wells Fargo for his last three semesters at Yale, nor did Wells Fargo “make arrangements” — whether by establishing a reserve or prepaying the costs— to obey Mrs. Kritchman’s written, lifetime instruction. Mrs. Kritchman passed away on November 8, 2010. On November 23, 2010, a trust officer from Wells Fargo’s wealth management division sent an email to Mr. Wolk’s mother assuring her that a check for Mr. Wolk’s tuition bill would be sent to Yale by the end of November. Thereafter, Mrs. Kritchman’s son and Mr. Wolk’s mother disagreed regarding Mrs. Kritchman’s last will and testament (and a disputed fourth codicil), and Mr. Kritch-man countermanded his mother’s written instructions to Wells Fargo. The check for tuition and other expenses was not sent to Yale, nor were those costs paid for his senior year.

Ultimately, Mr. Wolk filed a lawsuit against Wells Fargo and Mr. Kritchman (in Mr. Kritchman’s dual capacities as co-trustee of his late mother’s revocable trust and as personal representative of her estate). The second amended complaint alleged breaches of written and oral contracts, promissory estoppel, and breach of trust. Mr. Wolk’s claims included both the unreimbursed Yale University undergraduate expenses as well as future graduate school expenses. The graduate school claim under the Trust was based on a broad definition of “education” in Article XIX.D. of the Trust Agreement (“In this Agreement... .the term ‘education’ shall be interpreted broadly to include, but not be limited to, the following: precollege private school tuition, vocational school tuition, college or postgraduate school tuition, educational travel, room, board, books, school supplies and travel to and from any of said schools away from home”). However, the Trust Agreement itself included no specific gifts for “education” for Mr. Wolk, and Mrs. Kritchman had not issued any written directive regarding graduate school expenses to her trust officer at Wells Fargo.

The defendants asserted affirmative defenses based on the statute of frauds and an interpretation of the Trust Agreement that nullified (upon Mrs. Kritchman’s death) her directive in her letter of April 17, 2010. The parties then cross-moved for partial summary judgments and, thereafter, a final judgment.

The trial court granted final judgment in favor of Mr. Wolk on (a) the breach of oral contract count for the unpaid Yale tuition, room, and board ($85,826.76) plus prejudgment interest, and (b) the breach of trust claim, for the unpaid tuition, room, and board, as well as other expenses, such as books and health insurance (a total of $101,491.93) plus prejudgment interest. The trial court reserved jurisdiction to consider future damages for graduate school tuition, and it concluded that the co-trustees were required to disgorge any amounts removed from the Trust to pay their respective legal expenses. The trial court granted Mr. Kritchman’s and Wells Fargo’s motions for summary judgment on the claims for breach of a written contract and for promissory estoppel, finding that these were duplicative of the oral contract and breach of trust claims. Mr. Kritch-man and Wells Fargo appealed the final judgment, and Mr. Wolk cross-appealed the denial of relief on the written contract and promissory estoppel claims.

Analysis

Wells Fargo was obligated to carry out Mrs. Kritchman’s written directive, issued while she was still alive, to “make arrangements” to pay Mr. Wolk’s last three semesters of undergraduate tuition, room, and board at Yale. There is no summary judgment evidence indicating that the Trust lacked the ability to make the payments or to establish a reserve to pay them. Indeed, Wells Fargo not only could, but did comply with a portion of Mrs. Kritchman’s written directive, by paying Mr. Wolk’s tuition, room and board for the fall semester of his junior year. Moreover, the record below includes written communications after the date of Mrs. Kritchman’s death whereby (a) Wells Fargo represented to Mr. Wolk’s mother that “A check will be going out at the end of the week for Hunter’s tuition payment [for the Spring 2011 semester], which is due December 1, 2010,” and (b) Wells Fargo secured from Mr. Kritchman a written authorization for his late mother’s trust “to continue the promise that your mother made to pay for the tuition, room and board for Hunter Wolk while attending Yale University.”

Wells Fargo’s attempt to impose additional procedural requirements-none of which are set forth in the Trust Agreements unavailing. The record establishes that the real reason Wells Fargo neither paid for Mr. Wolk’s last three semesters at Yale from the Trust assets, nor set aside sufficient assets to pay those costs, is that Mr. Wolk’s mother had produced a fourth codicil in Mrs. Kritchman’s estate, to Mr. Kritchman’s detriment. Wells Fargo failed to comply with the express terms of Mrs. Kritchman’s written directive, and with Mr. Kritchman’s written authorization, to make necessary arrangements to pay for the entire remaining two years of Mr. Wolk’s tuition, room, and board at Yale. Wells Fargo has offered neither summary judgment evidence nor a supportable explanation for parsing Mrs. Kritchman’s written directive in such a way as to justify its inaction.

The failure of Wells Fargo to carry out the terms of the Trust, under the factual circumstances of this case, violated sections 736.0801, Florida Statutes (2010) (duty to administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries), 736.0803 (duty to act impartially as among beneficiaries), and 736.0804 (duty to prudently administer the trust by considering the purposes, terms, distribution requirements, and other circumstances of the trust). These breaches of duty establish the liability of the co-trustees for a breach of trust. § 736.1001(1), Fla. Stat. (2010); Covenant Trust Co. v. Guardianship of Ihrman, 45 So.3d 499, 504 (Fla. 4th DCA 2010). Upon the finding of breach of trust, the co-trustees failed to give notice as required by section 736.0802(10), Florida Statutes (2010), justifying the trial court’s prohibition of further attorney’s fees and costs from assets of the Trust and its order for a refund of previous attorney’s fees and costs paid to Wells Fargo from the Trust.

There was also uncontroverted summary judgment evidence establishing Mrs. Kritchman’s promise to Mr. Wolk, his reliance on that promise (applying to, and attending, Yale rather than utilizing his prepaid tuition account for a Florida university), and the partial performance of that agreement through the first semester of his junior year. Nonetheless, the trial court did not err in denying the claims for written contract and promissory estoppel, as these were merely duplicative of the other claims. See Laufen, Inc. v. Andrew, 83 So.3d 898, 899 (Fla. 5th DCA 2012) (final judgment should make it clear that plaintiffs are only entitled to a single damages award on two theories of recovery); J & L Enter. v. Jones, 614 So.2d 1151, 1158 (Fla. 4th DCA 1993) (party entitled to relief only on one of several alternative claims).

Finally, the appellants’ claim of error with regard to any future award of expenses for graduate school is. well taken. The Trust Agreement did not include any such gift or provision for the benefit of Mr. Wolk, despite its broad definition of “education.” A promise of an indeterminate amount, for an indeterminate number of years of graduate school, commencing at an indeterminate time, runs afoul of the Statute of Frauds. We thus reverse the final judgment insofar as it purports to include an award for graduate school expenses “to,be determined,” and insofar as it awarded Mr. Wolk expenses beyond the tuition, room, and board at Yale as specified by Mrs. Kritchman in separate written instructions under Article I.A. of the Trust Agreement.

Conclusion

For the reasons detailed above, (a) we affirm the final judgment against Wells Fargo and Mr. Kritchman, jointly and severally, for breach of oral contract and breach of trust, although we reduce the amount of damages to the single amount of $85,826.76, plus prejudgment interest, (b) on the cross-appeal, we affirm the final judgment relating to the written contract and promissory estoppel claims, as they are duplicative, (c) we affirm the trial court’s prohibition on payment of the co-trustees’ attorney’s fees and costs from the Trust assets, and the directive for disgorgement of any such amounts previously paid from the Trust, and (d) we reverse the final judgment insofar as it contemplated any future liability of the co-trustees, the Trust, or Mrs. Kritchman’s estate for future graduate school expenses. We remand the case to the trial court for amendment of the final judgment to modify the damages award as set forth above.

Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.

      . Wells Fargo became successor co-trustee of Mrs. Lola Kritchman’s revocable trust upon its merger with Wachovia Bank, N.A. For ease of reference, we refer throughout this opinion to Wells Fargo, though much of the relevant history occurred when Wachovia served as the co-trustee.

      . Indeed, at the time of oral argument in June 2014, two years after Mr. Wolk’s graduation from Yale, Mr. Wolk had not been reimbursed for those expenses by the co-trustees or Mrs. Kritchman’s estate. The co-trustees did, however, make a separately-specified pre-residu-ary gift of $25,000.00 to Mr. Wolk pursuant to article V.D. of the Trust Agreement.

      . The judgments on the oral contract and breach of trust claims are not cumulative; payment of one is creditable against the judgment debt on the other claim as well.

      . It is noteworthy that the letter authorized the trust to make the payments rather than Mr. Kritchman's late mother’s estate.

      . This dispute gave rise to an adversary proceeding in the probate case relating to Mrs. Kritchman’s estate, Case No. 2011-1562-CP, and a separate (pending) appeal from the final order admitting the codicil to probate, Kritchman v. Spiegel, Case No. 3D 14-94.

      . We reject Wells Fargo’s argument that it should not be held liable for the breach of trust because it reasonably relied on the language of the Trust Agreement; § 736.1009, Fla. Stat. (2010). This argument was not raised in the trial court, and in any event the Trust Agreement states that the co-trustee "shall” pay such sums as Mrs. Kritchman might direct at any time. Institutional trustees charge and are paid fees for following such directions, and they are exposed to liability when they do not.

      . The higher award on one of the counts was apparently computed using the expansive definition of "education” in the Trust Agreement instead of the narrower "tuition, room, and board” specified by Mrs. Kritchman and established over Mr. Wolk's previous five semesters at Yale.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Cedrick WHITE, Respondent.
    No. 4D14-667.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach for petitioner.
    Howard Finkelstein, Public Defender, and Sarah Sandler, Assistant Public Defender, Fort Lauderdale, for respondent.
   PER CURIAM.

The state petitions for a writ of prohibition to review the denial of its motion to disqualify the trial judge. We treat the petition as both a petition for a writ of prohibition and a petition for a writ of certiorari. We grant the petition in both respects.

The state charged the defendant with lewd or lascivious molestation of a person less than twelve by a person eighteen years of age or older — a life felony. §§ 775.082(3)(a)4. & 800.04(5)(b), Fla. Stat. (2010). The defendant requested the judge to set a bond unless the state could establish that proof of guilt is evident or the presumption is great, pursuant to State v. Arthur, 390 So.2d 717, 720 (Fla.1980). After holding an Arthur hearing, the judge set a bond for the defendant.

The state later filed a motion pursuant to Williams v. State, 110 So.2d 654 (Fla.1959), seeking to introduce at trial similar fact evidence which another child alleged against the defendant. The judge refused to rule on the state’s motion before trial. In light of the judge’s refusal to rule, the state nolle prossed the charges and re-filed the charges under a new case number later that day.

At arraignment for the re-filed charges, the judge sua sponte ordered the defendant released on his own recognizance without taking any evidence or argument. The judge then indicated that, as a matter of policy, he does not entertain Williams rule motions before trial. The judge stated, “[n]ow ... my policy on Williams rule ... I will make that determination during the course of the trial, whether to admit it. I will not hold a hearing prior.”

The state timely moved to disqualify the judge on two grounds: (1) based on the judge’s order releasing the defendant on his own recognizance without taking any evidence or argument, in an apparent reaction to the state’s decision to nolle prosse and then re-file the charges against the defendant; and (2) based on the judge’s articulation of a policy not to hear Williams rule motions before trial. The judge denied the motion as being legally insufficient.

The state then filed the instant petition raising the same two grounds. The defendant concedes on the second ground that the judge “should be compelled to renounce [his] policy of not hearing Williams rule motions prior to trial.” Our review is de novo. See Parker v. State, 3 So.3d 974, 982 (Fla.2009) (“The standard of review of a trial judge’s determination on a motion to disqualify is de novo.”) (citation omitted).

To the extent the state seeks review of the denial of its motion for disqualification on the ground that the judge ordered the defendant released on his own recognizance without taking any evidence or argument, in an apparent reaction to the state’s decision to nolle prosse and then re-file the charges against the defendant, we treat the petition as seeking a writ of prohibition and grant the petition. See id. (“The standard for viewing the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, would cause the mov-ant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge.”) (citation omitted).

To the extent the state seeks review of the court’s announced policy not to hear Williams rule motions before trial, we treat the petition as seeking a writ of certiorari and grant the petition. The court’s announced policy may cause irreparable harm to the state because it would have no right of appeal if the defendant is acquitted. Further, the court’s announced policy constitutes a denial of due process to the state and therefore is a departure from the essential requirements of the law. See Nader v. Fla. Dep’t of Highway Safety & Motor Vehs., 87 So.3d 712, 721 (Fla.2012) (“[A] party seeking review through a petition for writ of certiorari must demonstrate: (1) a material injury in the proceedings that cannot be corrected on appeal (sometimes referred to as irreparable harm); and (2) a departure from the essential requirements of the law.”) (citation and internal brackets and quotation marks omitted).

Based on the foregoing, we grant the state’s petition. We remand for appointment of a successor judge. The state may request the successor judge to reconsider the order releasing the defendant on his own recognizance. See Fla. R. Jud. Admin. 2.330(h) (“Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist.”).

Petition granted.

STEVENSON, MAY and GERBER, JJ., concur.


author: MAY, J. LEVINE, J., CIKLIN, J.,

text:
    Gibson PAUL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2420.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2014.
    Rehearing Denied Jan. 12, 2015.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his convictions and sentences for first degree murder with a firearm, aggravated assault with a firearm, shooting into an occupied vehicle, and possession of a firearm by a convicted felon. He raises three issues on appeal. We affirm on all, but write to discuss his argument that the court erred in restricting his use of standby counsel.

The charges arose out of an altercation between the defendant and one of the victims. The defendant shot and killed the victim in her car, and shot another victim. The details of the incident are irrelevant to the issue to be addressed.

Pre-trial Hearings

Prior to trial, the defendant was assigned a public defender. Conflicts arose between them about how to proceed with the case. The main disagreement involved the defendant’s desire to expedite the case for trial. While represented, the defendant filed a pro se demand for speedy trial, which his counsel moved to strike. The defendant then decided to represent himself and discharged his counsel.

After discharging counsel, the defendant again demanded speedy trial. Noting that it was his choice, the judge asked the defendant whether he thought “it would be beneficial to give [himself] an opportunity to do some discovery?” The defendant declared he was ready and had demanded speedy trial months ago. The court set the trial with the assigned public defender appointed as standby counsel.

At a subsequent hearing before trial, the judge conducted a Faretta hearing and explained the defendant’s right to have an attorney represent him, and the benefits of having an attorney. Because of their ongoing disagreement, standby counsel moved to withdraw:

And Judge, I understand why we are appointed. It’s to assist the Court. So I don’t want the Court to think that I am not trying to help out with that. I just feel that we were — the Public Defender’s Office, we withdrew the last time Mr. Paul wanted to represent himself, so the Public Defender’s Office withdrew but the Court appointed myself as standby counsel which the Court has discretion to do. I just feel — but the purpose of that would be to kind of help the process move along.

The judge responded, “No, the purpose of standby counsel is if this gentleman ever has an epiphany during the course of the trial, someone is available to step in at that moment and say okay, I will finish this trial. That’s what it would be for.” Standby counsel then explained that he would not be able to resume the trial for the defendant should the defendant decide to let him take over: “We would not be prepared to go to trial. I would waive speedy trial if I were to take over and properly work up this case like it should be.” The judge then asked the defendant:

THE COURT: [A] lot of people think it’s helpful to do discovery in order to prepare for a trial, do you agree with that?
THE DEFENDANT: Yes, ma’am. I went through all of my discovery. I done went through my whole case.
THE COURT: Okay. And you are good to go with whatever you have, that’s your position?
THE DEFENDANT: Yes, ma’am.

The defendant decided that he did not want his public defender as standby counsel: “I don’t want him to standby. I don’t need him standing by no one. Period. I don’t know why he is in the Courtroom today anyway.” The court granted standby counsel’s motion to withdraw, but before doing so, the court found that standby counsel was an experienced criminal defense attorney:

THE COURT: And that is at the Defendant’s specific request that you not even have standby counsel. Is that what you are asking for, sir?
THE DEFENDANT: I asked for co-counsel.
THE COURT: Well, you’re not a lawyer so you can’t have co-counsel.
THE DEFENDANT: If I request to discharge my counsel, why would you have him as standby?
THE COURT: In the event that you change your mind and you don’t want to represent yourself as a pro se non-lawyer.
THE DEFENDANT: That won’t happen.

Trial and Verdict

On the first day of trial, the court conducted another Faretta hearing, reviewing the defendant’s highest level of education, whether he was under the influence of drugs or alcohol, and whether he had ever been declared incompetent. The court again emphasized the benefits of having an attorney. After a brief recess, the court conducted yet another Faretta hearing. The defendant stated that he wanted to represent himself.

At this point, the elected Public Defender for the Circuit intervened. She advised the court that she had spoken with the defendant and told him that if he wanted standby counsel, it would be the assigned public defender because no one else knew anything about the case. The defendant then decided that he did, in fact, want standby counsel. The court reappointed the same public defender as standby counsel.

The defendant conducted his own opening statement, with the State lodging an objection after his first sentence. The defendant responded, “I’m going to need more time.” The court reminded the defendant that he had demanded a speedy trial and it was time for opening statement.

After the defendant cross-examined the first witness, the court held a sidebar with the State and the defendant. While it is unclear from the record, it appears that the defendant began consulting with standby counsel:

THE COURT: Mr. [Paul], you are entitled to represent yourself. You are entitled to have standby counsel. You don’t have anything in the middle. So if and until you elect to bring [your standby counsel] back on board, you can’t consult back and forth. He’s either in or off, so do you want him to represent you?
THE DEFENDANT: I got the names confused of the officers.
THE COURT: Well, I don’t know what to help you with. You can either be represented by an attorney or not.
THE DEFENDANT: So, what, waive my trial? Is it going to waive?
THE COURT: That witness has gone. Whether you want to call him back, that’s up to you, but you can’t straddle the fence. You either have [standby counsel] or you don’t. He is not consulting with you. I’m going to have him sit in the back of the courtroom up until the time—
THE DEFENDANT: If I say I want an attorney, I go stop?
THE COURT: No.
THE DEFENDANT: That’s what I thought. I was going to continue my trial if I bring him on I thought, that’s what I thought.
THE COURT: You want [standby counsel] to assist you or not?
THE DEFENDANT: Yes, ma’am.
THE COURT: You do or you do not?
THE DEFENDANT: Yes, ma’am.
THE COURT: Okay. [Standby counsel].
[STANDBY COUNSEL]: If that — this is what I talked about last week.
THE DEFENDANT: I want to continue.
[STANDBY COUNSEL]: In order for me to properly represent Mr. Paul, work has to be done, we have to take depositions.
THE COURT: That’s not the way it’s going to work. Mr. Paul made the decision, he has been in court every single time. We have gone through the colloquy. We talked about the education, the fact that he reads, writes English. We talked about the pros of having a lawyer, couldn’t really think of any pros of him representing himself. I advised him all along that, yes, he understands that question every time he comes into court, yes, he understands. We have had it three times today, yes, I understand that. Then if at any point Mr. Paul changes his mind, you step in, you go forward. Mr. Paul has created this situation.
[STANDBY COUNSEL]: I understand that, Judge. I am not trying to argue with the Court. I am in no position to take over a first degree murder. I have had the case six weeks. I am not in a position to effectively represent Mr. Paul in going forward right now.

The defendant requested to have his standby counsel represent him.

Standby counsel immediately moved for a mistrial reiterating that he was unprepared. The judge denied the motion. Standby counsel then requested a continuance until the next morning, to which the State objected due to witnesses who had travelled to be at trial that day. The court denied the motion for continuance. The trial continued with standby counsel now representing the defendant.

After the State presented the testimony of another witness, standby counsel again moved for mistrial, “I am not prepared to effectively cross-examine this particular witness.” The trial court denied the motion. At the end of the first day, standby counsel again moved for mistrial:

THE COURT: Do you have any type of authority that would support that the fact that this gentleman has been through umpteen Faretta hearings, has always said — even went so far as to say that he didn’t even want you involved as standby counsel. He’s been evaluated to see whether he’s competent. He’s competent, it’s his choice. He can make his choice, he made it, so this is the position that he’s in. We are going to go forward. I’m not frustrated or anything with you. I understand you are laying a record. This is the position that Mr. Paul has found himself in based on the decision that Mr. Paul has made throughout the course of these proceedings.
[STANDBY COUNSEL]: It’s just a matter of Defense being prepared for trial, that’s all. I’m being ineffective.
THE COURT: Well, I don’t think that the ineffective — the fact that Mr. Paul elected to discharge his lawyer, demand a speedy trial, go to trial without having any discovery, that’s his choice, because we had multiple, multiple Faretta hearings. And, in fact, when he filed the Nelson hearing because you said you wanted to take the time to prepare for the case, I didn’t even let him have the Nelson hearing until he was evaluated to see whether or not he was competent. Whether it’s a good decision or bad decision to represent himself, that is a decision that he’s entitled to make and he made that.

On the second day of trial, standby counsel renewed his motion for mistrial:

[STANDBY COUNSEL]: The Defense got appointed with no preparation done in this case whatsoever. Yesterday I was cross-examining witnesses I don’t even know who they are.
THE STATE: Judge, I think this was not unexpected, and the defendant put himself in this position by demanding speedy trial, by asking to represent himself and by having the trial started, and even one or two witnesses, I don’t remember how many already'testified, by the time, he has now decided to have a lawyer. So because he has put himself in this position, he is not entitled to change the way that the Court is able to administer justice by asking for a continuance, trying to establish error. So we would object to any motion for mistrial being granted.

The court denied the motion.

After the State rested, standby counsel moved for a judgment of acquittal arguing that the State failed to make a prima facie case. The judge denied the motion. The defendant briefly testified that he was already out of state when the shooting occurred. Standby counsel again moved for a judgment of acquittal. The judge denied the motion.

The jury found the defendant guilty of first degree murder with a firearm, aggravated assault with a firearm, shooting into an occupied vehicle, and possession of a firearm by a felon. The court sentenced the defendant to life in prison on the murder charge.

On appeal, the defendant argues that the trial court misunderstood the role of standby counsel and erred in not allowing him to ask questions or otherwise communicate with his standby counsel. He contends that, because of the court’s improper restriction, he was forced to give up his constitutionally guaranteed right to represent himself. ' The State responds that the trial court clearly advised the defendant of the reason she was appointing standby counsel, which she had the discretion to do, and that this issue is not preserved and is based on speculative grounds.

Preservation

A defendant must preserve issues for appellate review by first raising them in the trial court. Harrell v. State, 894 So.2d 935, 939 (Fla.2005). Here, the defendant did not object to the trial court’s restriction on his access to standby counsel. In fact, on more than one occasion, the defendant discharged standby counsel. This claim is therefore unpreserved for our review. See McKenzie v. State, 29 So.3d 272, 283 (Fla.2010) (finding the defendant’s claim that the trial court improperly restricted his access to standby counsel was unpreserved because defendant failed to object on those grounds).

Even if the defendant had challenged the restricted use of standby-counsel, we see no error in the trial court’s appointment of standby counsel for the purpose of conducting the trial should the defendant change his mind about his representation. We review trial court decisions regarding the right to self-representation for an abuse of discretion. Neal v. State, 60 So.3d 1132, 1134-35 (Fla. 4th DCA 2011).

The Role of Standby Counsel

With some limitation, a defendant in a criminal trial has the right to self-representation. Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant who decides to represent himself bears the entire responsibility for his defense, even if he is appointed standby counsel. Behr v. Bell, 665 So.2d 1055, 1056-57 (Fla.1996).

A defendant has no constitutional right to standby counsel. Jones v. State, 449 So.2d 253, 258 (Fla.1984). And the trial court has the discretion to appoint standby counsel. Id. No defendant has a constitutional right to “hybrid representation.” Sheppard v. State, 17 So.3d 275, 279-80 (Fla.2009).

A criminal defendant is entitled to change his mind regarding self-representation, but it is “implicit in Faretta that the right to appointed counsel, like the obverse right to self-representation, is not a license to abuse the dignity of the court or to frustrate orderly proceedings, and a defendant may not manipulate the proceedings by willy-nilly leaping back and forth between the choices.” Brown v. State, 45 So.3d 110, 115-16 (Fla. 1st DCA 2010) (quoting Jones, 449 So.2d at 259). In fact, standby counsel’s role has been described as “assisting] the court in conducting orderly and timely proceedings.” Behr, 665 So.2d at 1056.

The Supreme Court of the United States touched upon the role of standby counsel in both Faretta and McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). In Faretta, the Court recognized that a trial court may “appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendánt’s self-representation is necessary.” 422 U.S. at 834 n. 46, 95 S.Ct. 2525. In McKaskle, the Court further éxplained:

A defendant’s Sixth Amendment rights are not violated when a trial judge appoints standby counsel — even over the defendant’s objection — to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant’s achievement of his own clearly indicated goals. Participation by counsel to steer a defendant through the basic procedures of trial is permissible

McKaskle, 465 U.S. at 184, 104 S.Ct. 944.

Our supreme court discussed standby counsel in State v. Knight, 866 So.2d 1195 (Fla.2003). There, the state appealed an order vacating a death sentence and granting the defendant a new sentencing proceeding. Id. at 1198. The defendant cross-appealed and filed a petition for writ of habeas corpus, asserting five claims of ineffective assistance of appellate counsel. Id. at 1203. One of those claims was the failure to raise any issues regarding the limitation on his use of standby counsel during the trial. Id.

The court reviewed the transcript and found that the defendant specifically refused assistance of standby counsel and “wanted to make sure that there was no insinuation or appearance that [standby counsel] was in any way acting as his counsel.” Id. at 1205. The court found it clear that the defendant did not want it to appear that he had acquiesced to the limited role that his standby counsel performed. Id. The court denied the petition. Id. at 1210.

Similarly here, the defendant refused standby counsel and, in fact, had discharged his lawyer before and after his lawyer was appointed as standby counsel. “I don’t want him to standby. I don’t need him standing by no one. Period. I don’t know why he is in the Courtroom today anyway.” We fail to see how any limitation on the use of standby counsel can now be argued when the defendant made clear that he did not want standby counsel.

We acknowledge the herculean effort of the public defender to help this defendant before and during the trial. At every turn, the public defender gave sage advice to forgo a demand for speedy trial, to properly prepare for trial, and undertake discovery. Unfortunately, that advice went unheeded by the defendant.

We also acknowledge the patience and diligence of the trial judge to insure the defendant was competent, aware of the advantages of having counsel and the disadvantages of representing himself, and give him multiple opportunities to reconsider his decision. In the end, the defendant chose to represent himself. The outcome was not unexpected. Given the defendant’s choice, which is guaranteed by the Constitution, we see no error in the court’s handling of standby counsel or any of the other issues raised.

Affirmed.

CIKLIN, J., concurs specially with opinion.

LEVINE, J., concurs specially with opinion, in which CIKLIN, J., concurs.

LEVINE, J.,

concurring specially.

I concur because there is no evidence in the record that the trial court’s statements or actions actually prevented appellant from consulting with standby counsel. However, I write to emphasize that the trial court defined the role of standby counsel too narrowly by highlighting only one of the two purposes for appointing such counsel as enunciated by the United States Supreme Court.

As quoted by the majority, the trial court stated that standby counsel had only one purpose. During a pretrial hearing, the trial judge said, “No, the purpose of standby counsel is if this gentleman ever has an epiphany during the course of the trial, someone is available to step in at that moment and say okay, I will finish this trial. That’s what it would be for.” (emphasis added). The trial court later reiterated this during the trial when it informed appellant that he could either represent himself or have standby counsel fully represent him, but could not “have anything in the middle.” The court told appellant, “[I]f and until you elect to bring [counsel] back on board, you can’t consult back and forth,” and that “[y]ou either have [counsel] or you don’t. He is not consulting with you. I’m goiny to have him sit in the back of the courtroom up until the time ...(emphasis added). At that point, appellant stated that he wanted counsel to represent him. Appellant’s counsel moved for a mistrial several times based on his unpreparedness and alternatively requested a continuance, but the trial court denied all his requests. It is clear that the trial court felt that appellant could either have the standby counsel represent him as his counsel or have standby counsel on standby and not consult or speak with appellant.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court recognized the role of standby counsel. “Of course, a State may — even over objection by the accused — appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” Id. at 834 n. 46 (emphasis added) (citing United States v. Dougherty, 473 F.2d 1113, 1124-26 (D.C.Cir.1972)).

In McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), the Supreme Court further explained the purposes and functions of standby counsel. The court stated that standby counsel could assist “the pro se defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete.” Id. at 183, 104 S.Ct. 944. Further, standby counsel may help the “defendant’s compliance with basic rules of courtroom protocol and procedure,” as well as “steer a defendant through the basic procedures of trial.” Id. at 183-84, 104 S.Ct. 944. See also United States v. Bertoli, 994 F.2d 1002, 1018-19 (3d Cir.1993) (“Essentially, standby counsel has two purposes — to act as a safety net to insure that the litigant receives a fair hearing of his claims and to allow the trial to proceed without the undue delays likely to arise when a layman presents his own case. Alternately, we can identify at least four functions that standby counsel can serve: (1) Standby counsel must be available if and when the accused requests help. (2) Standby counsel must be ready to step in if the accused wishes to terminate his own representation. (3) The court may appoint standby counsel in order to explain and enforce the basic rules of courtroom protocol to the accused. (4) The court may appoint standby counsel in order to overcome routine obstacles that may hinder effective pro se representation.”) (citations omitted).

Of course, “Faretta does not require a trial judge to permit ‘hybrid’ representation” nor is standby counsel constitutionally required. McKaskle, 465 U.S. at 183, 104 S.Ct. 944. However, where the trial court appoints standby counsel, it needs to be mindful of the two objectives and roles of standby counsel as referenced in Faret-ta and McKaskle: one, to aid the accused if and when the accused requests help; two, to be available to represent the accused when the accused withdraws his right to self-representation.

Clearly, standby counsel is envisioned as having a greater role than merely being silent at the back of the courtroom ready to participate, if and only when the defendant acquiesces to waiving his right to self-representation and allowing standby counsel to take over as counsel. Because this is what the trial court here proposed, I find the court was too narrow in its construct of standby counsel. Nevertheless, although implied in the record, there is no evidence that the court actually prevented appellant from speaking with standby counsel. Thus, I concur and write only to highlight that once standby counsel is appointed, a trial court should not prevent a defendant from seeking the aid and assistance of standby counsel to “explain and enforce the basic rules of courtroom protocol” and to overcome “routine procedural or evidentiary obstacles” that “may hinder effective pro se representation” such as introducing evidence or objecting to testimony. Bertoli, 994 F.2d at 1019; see McKaskle, 465 U.S. at 183, 104 S.Ct. 944; Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525.

CIKLIN, J.,

concurring specially.

I also write separately to caution readers of this opinion that the majority opinion does not either expressly or impliedly affirm or in any way endorse the trial court’s apparent suggestion that — once a trial judge exercises his or her discretion to appoint standby counsel — the court may then attach a metaphorical asterisk by imposing limitations on the defendant’s access to his attorney’s advice and counsel.

As a trial judge for over fourteen years, I can appreciate the trial court’s exasperation quite understandably caused by the maddening indecisiveness of the defendant — perhaps even bordering on an intentional manipulation of the proceedings. Indeed, this is one of those situations that best demonstrates the exceedingly difficult job of a Florida trial judge. A truly wonderful, rewarding, and gratifying occupation indeed but one which can also cause many a sleepless night and test the patience and stamina of even the most Job-like jurist.

Because it is not clear from the record that the defendant actually tried to consult with standby counsel, I concur with the majority and affirm the conviction.

And I wholeheartedly join with Judge Levine in offering a cautionary warning to our trial court colleagues.

      . The defendant was also charged with aggravated battery with a firearm, but was acquitted on that charge.

      . The trial judge transferred the case to the Mental Health Division for a competency determination before proceeding. The defendant was found competent to proceed.

        .Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . The court also sentenced the defendant to twenty consecutive years for the aggravated assault with a firearm charge, fifteen consecutive years for the shooting into an occupied vehicle charge, and fifteen years for the felon in possession of a firearm charge, with a three year minimum mandatory to run concurrent with the murder charge.


text:
    David MOORE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D14-2723.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2014.
    Rehearing En Banc Denied Dec. 22, 2014.
    David Moore, Jr., Milton, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s successive and untimely motion for postcon-viction relief. Appellant raised the same claim regarding misadvice of counsel regarding his plea in Moore v. State, 114 So.3d 291 (Fla. 4th DCA 2013). He claims that because of Alcorn v. State, 121 So.3d 419 (Fla.2013), decided after Moore, he is entitled to re-raise this same claim. However, Florida Rule of Criminal Procedure 3.850(b)(3) permits a claim to be raised beyond the two-year time limitation only “where the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity.” Neither Alcorn nor any decision since its rendition has held that it is to be applied retroactively, nor does it appear that Alcorn meets the retroactivity test announced in Witt v. State, 387 So.2d 922 (Fla.1980).

Affirmed.

DAMOORGIAN, C.J., WARNER and GERBER, JJ., concur.


author: TAYLOR, J.

text:
    Anna Louise KRIFT, Appellant, v. Daryl Dean OBENOUR, Appellee.
    No. 4D13-1151.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.
    Rehearing Denied Jan. 14, 2015.

      Bennett S. Cohn, West Palm Beach, for appellant.
    Robin Bresky and Jonathan Mann of the Law Offices of Robin Bresky, Boca Raton, for appellee.
   TAYLOR, J.

The former wife appeals an amended final judgment of dissolution that ordered a rotating timesharing schedule which required the minor child to move every two months between the mother’s and father’s homes. She argues that the trial court violated her due process rights by ordering the rotating schedule, because neither party pled for or requested it and she had no opportunity to present evidence concerning the timesharing plan. Because the rotating timesharing plan ordered by the trial court was such a material departure from the plan the parties requested, we reverse and remand for further proceedings on this issue. The former husband cross-appeals, arguing that the trial court erred by classifying the credit card debt that he incurred during his marriage as non-marital debt. For reasons stated below, we affirm the cross-appeal.

The parties were married in November 2009. They had one child during the marriage, born in February 2010. During the marriage, the former husband commuted between the home they shared in Lake Worth and his job in Bahia Honda in the Florida Keys. When they separated in 2010, the former husband moved to Bahia Honda. The parties agreed on a timesharing plan wherein the former husband had the child for three overnights at his home in Bahia Honda and the former wife had the child for four overnights in Lake Worth. During this exchange, the child traveled an average of 400 miles a week roundtrip from Lake Worth to Bahia Honda.

At trial, the former wife requested that the trial court order the Model Parental Timesharing Schedule (Instate Where Parents Reside More than 45 miles Apart). Under the terms of that plan, the child would live with a primary residential parent during the week and spend every other weekend with the secondary residential parent. The former husband requested that their timesharing plan remain the same, with the child traveling between Lake Worth and Bahia Honda each week. He suggested that when the child enrolled in kindergarten, in either Bahia Honda or Lake Worth, the secondary residential parent move within fifty miles so that they could continue equal timesharing.

The trial court entered a Final Judgment of Dissolution of Marriage with a rotating timesharing plan requiring the child to spend two months with each parent. During those two months, the noncustodial parent would be allowed weekly daytime visitation with the child. Both parties filed motions for rehearing for a determination as to who would be the primary residential parent once the child reached kindergarten age. In her Motion for Rehearing and/or Clarification, the former wife also questioned why the trial court implemented a two-month rotating schedule instead of the Model Parental Timesharing Schedule (Instate Where Parents Reside More than 45 miles Apart).

The trial court denied the former wife’s Motion for Rehearing and/or Clarification but granted the former husband’s motion. The court issued an Amended Final Judgment designating the former husband as the primary residential parent once the child reaches kindergarten age. The court also ordered implementation of the Model Parental Timesharing Plan at that time.

On appeal, the former wife argues that the trial court erred by ordering a rotating timesharing plan that neither party requested in their pleadings or at any time during trial. She also argues that the trial court’s decision regarding the child’s residence upon reaching kindergarten age was an impermissible prospective relocation of the child.

A trial court’s timesharing and parenting plan determination is reviewed for an abuse of discretion. Winters v. Brown, 51 So.3d 656, 658 (Fla. 4th DCA 2011).

“[UJnder Florida Law a trial court may not order an annual, rotating time-sharing where neither parent requested such a plan in the pleadings, nor argued for the plan at the final hearing.” Bainbridge v. Pratt, 68 So.3d 310, 314 (Fla. 1st DCA 2011); see also Flemming v. Flemming, 742 So.2d 843, 844 (Fla. 1st DCA 1999) (“The trial court did not have authority to rule on matters that were ‘not the subject of appropriate pleadings and notice.’ ”).

In Bainbridge, the appellate court reversed an annual rotating timesharing plan ordered by the trial court because it had not been requested by either parent in the pleadings or at the final hearing. 68 So.3d at 314. The first time a rotating schedule was mentioned was when the trial judge stated, “I think I am going to do something which I think is in [the minor child’s] best interests. You both may not be happy with my decision.” Id. at 315. The court held that due process concerns required a reversal of the trial court’s decision. Id.

In Flemming, the court reversed an order with a weekly rotating timesharing plan because the plan was not raised by pleadings or agreed upon by the parties. 742 So.2d at 844. Before trial, the parties stipulated that the mother would be the primary residential parent and the father would be the secondary residential parent. Id. However, at trial, the father requested that the children live an equal amount of time with each parent on alternating weeks. Id. The mother objected to the arrangement because it was not raised in the pleadings. Id. Nevertheless, the trial court ordered the rotating schedule. Id.

In this case, both parties agree that neither one of them requested the two-month rotating schedule in their pleadings or at any time during the trial. They both lacked notice that the trial court would consider such an arrangement. At the time of trial, the parties were engaged in a timesharing schedule whereby they split the week. The former wife had the child for four overnights and the former husband had the child for three overnights. The former husband requested that the timesharing schedule remain the same until the child reached kindergarten age. The former wife requested that the court order the Model Parental Timesharing Schedule (Instate Where Parents Reside More than 45 miles Apart). This plan is designed around a primary residential parent and a secondary residential parent, with the child spending weekends with the secondary residential parent twice a month.

Similar to Bainbridge, the first time that a two-month rotating schedule was mentioned was at the end of the trial, when the court expressed concerns about the child traveling back and forth over 400 miles several times a month. To address those concerns, the court stated that it would be considering longer periods of time with each parent — such as blocks of months. Neither party had the opportunity to present evidence or arguments as to whether this arrangement was in the best interest of the child. Because the two-month rotating timesharing plan established by the trial court was such a significant departure from the timesharing schedule requested by the parties in their pleadings and at trial, we agree that the trial court erred in ordering it. The wife’s due process rights were violated because she was not given notice that the trial court would consider the two-month rotating schedule and was not given the opportunity to present evidence on the issue. See Moore v. Wilson, 16 So.3d 222, 224 (Fla. 5th DCA 2009) (holding that the trial court’s order for rotating custody violated the parties’ due process rights where neither party pled for or requested rotating custody).

Accordingly, we reverse and remand for further proceedings on the timesharing schedule. Both parties contest the mileage reimbursement awarded the former wife for timesharing travel. On remand,, we urge the court to reconsider the low transportation costs awarded to the wife, taking into account the parties’ relative financial situations and the actual travel costs of implementing a timesharing plan.

The former wife also argues that the amended final judgment providing that the child will reside with the father once she reaches kindérgarten age is an improper prospective relocation of the child. The Florida Supreme Court has held that a trial court must not make a best interest determination in petitions for relocation based on a “prospective-based” analysis. Arthur v. Arthur, 54 So.3d 454, 459 (Fla.2010). In Arthur, the trial court authorized the mother’s relocation twenty months from the date of the hearing. Id. Specifically, the trial court found that it was in the best interest of the child that the mother relocate to Michigan when the child turned three years old, which would occur twenty months from the date of the judgment. Id. at 455. The supreme court concluded that the best interest determination must be made at the time of the final hearing, i.e. “present-based” analysis. 54 So.3d at 459.

Section 61.13001(e), Florida Statutes (2012) defines “Relocation” as “a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing.... The change of location must be at least 50 miles from that residence.” (emphasis added).

In this case, the trial court’s decision regarding the child’s residence upon reaching kindergarten age is not a ruling on a relocation request. Neither parent sought to move from his or her principal place of residence, and, under the ordered parenting plan, neither parent would be changing his or her residence. The parenting plan in the amended final judgment does not involve “relocation,” as defined in section 61.13001(e), but rather orders that the father become the primary residential parent once the child begins kindergarten. We affirm this portion of the amended final judgment establishing the primary residential parent and timesharing parenting plan.

On cross-appeal, the former husband’s contends that the trial court erred in determining that his credit card debt was nonmarital and that this error led to an inequitable distribution unsupported by findings.

Section 61.075(3), Florida Statutes' (2012), requires the trial court to identify and value all marital assets and liabilities. Distribution of the marital assets and liabilities must be supported by factual findings in the judgment or order based on competent, substantial evidence. Kovalchick v. Kovalchick, 841 So.2d 669, 669 (Fla. 4th DCA 2003). We review such findings for an abuse of discretion. See Steele v. Steele, 945 So.2d 601, 602 (Fla. 4th DCA 2006). However, we review de novo the trial court’s legal conclusion that an asset or liability is “marital” or “non-marital,” as defined in the statute. Mondello v. Torres, 47 So.3d 389, 392 (Fla. 4th DCA 2010) (“A trial court’s legal conclusion that an asset is marital or nonmarital is subject to de novo review.”); Smith v. Smith, 971 So.2d 191, 194 (Fla. 1st DCA 2007) (“The ultimate conclusion as to whether a debt is marital or nonmarital is an issue of law subject to de novo review.”).

“All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities.” § 61.075(8), Fla. Stat. (2012). However, to the extent that a party incurred debts to cover nonmarital expenses, the debt should not be classified as marital debt for the purpose of equitable distribution. Fortune v. Fortune, 61 So.3d 441, 445 (Fla. 2d DCA 2011) (reversing because the trial court classified the entire amount of a loan as a marital debt without making a finding as to when the debt was incurred or what the debt was used to pay); Walker v. Walker, 827 So.2d 363, 364-65 (Fla. 2d DCA 2002) (reversing because the trial court classified the entire amount of a debt as a marital debt without determining which portion of the debt was used to pay the husband’s litigation and living expenses versus paying his personal income tax and property taxes).

Here, based on the former husband’s own testimony, the trial court determined that the credit card debt in the former husband’s name was nonmarital. , His testimony concerning the nature and purpose of his credit card expenses sufficiently overcame the presumption that the liability was marital. Because we find no error in the trial court’s classification of the former husband’s credit card debt as nonmarital, we affirm.

Affirmed in part, Reversed in part, and Remanded on direct appeal, and Affirmed on cross appeal.

GROSS and GERBER, JJ., concur.


author: CONNER, J.

text:
    Kathleen G. KOZINSKI, as Trustee and as Personal Representative, Appellant, v. Amy STABENOW and Nora Faul, Appellees.
    No. 4D14-1056.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.
    Beverly A. Pohl of Broad and Cassel, Fort Lauderdale and Gary E. Lehman of Broad and Cassel, Miami, for appellant.

      Edward Downey and Lee McElroy IV of Downey & Downey, P.A., Palm Beach Gardens, for appellees.
   CONNER, J.

Appellant, Kathleen Kozinski, appeals the entry of a non-final order denying her motion to dismiss the Appellees’ petition for lack of personal jurisdiction. Kozinski argues that the trial court erred in denying her motion to dismiss because she was never served with formal notice that she might be subject to personal liability. Specifically, Kozinski argues that the remedy of “surcharge” sought in the Appel-lees’ petition against her individually constituted an adversary proceeding requiring service by formal notice under the Florida Probate Rules in order for the probate court to have personal jurisdiction over her individually, as opposed to personal jurisdiction over her as personal representative or trustee. We agree and reverse.

Facts and Trial Proceedings

Kozinski, an attorney, serves as the trustee of a trust created by her mother, E.W.H. After E.W.H. died, Kozinski filed a notice of trust, which noted that the trust would be liable to E.W.H.’s creditors to the extent her estate was insufficient to pay them. Thereafter, a petition for administration of E.W.H.’s estate was filed as a separate case. Kozinski was appointed as personal representative of the estate. Subsequently, the two cases were consolidated. Appellees Stabenow and Faul, E.W.H.’s two other daughters, are beneficiaries under the will and the trust. Ko-zinski is also a beneficiary under the will and the trust.

Pursuant to sections 733.6175 and 736.0206, Florida Statutes (2014), the ap-pellees filed a petition to review the compensation of Kozinski as personal representative and as trustee, as well as fees paid to Kozinski’s law firm and the law firm of Broad and Cassel. In the petition, the appellees also objected to accountings based on the payment of the fees. The appellees claimed Kozinski had paid excessive fees from the estate and trust assets. The appellees asked the court to determine the reasonableness of the compensation and also “to enter such surcharge or disgorgement orders as are warranted,” along with fees and other relief, (emphasis added).

The appellees’ petition for review was not formally served upon Kozinski, but was sent via e-mail service to her counsel. In response, Kozinski filed a motion to dismiss the petition for lack of personal jurisdiction, arguing, among other things, that the appellees failed to invoke the court’s personal jurisdiction over her where they sought surcharge and disgorgement against her in her individual capacity.

At the hearing on the motion, Kozinski argued that a surcharge action, which is based on a breach of fiduciary duty, was an adversary proceeding which required formal notice or a complaint served under the Florida Rules of Civil Procedure in order to obtain personal jurisdiction over Kozinski individually. See Fla. Prob. R. 5.025(a), (d). The appellees disagreed and argued that the petition was not an adversary proceeding and did not require formal notice. The appellees maintained that the remedy of a “refund” which is provided for under sections 733.6175 and 736.0206 was indistinguishable from a “surcharge,” and asserted that the court already had jurisdiction over Kozinski as personal representative and trustee by virtue of her initial pleadings. The trial court denied the motion to dismiss, but granted a stay pending this appeal.

Appellate Analysis

“The denial of a motion to dismiss for lack of personal jurisdiction is reviewed de novo.” Kent v. Marmorstein, 120 So.3d 604, 605 (Fla. 4th DCA 2013).

The appellees filed their petition in a probate case pursuant to section 733.6175 (Proceedings for review of employment of agents and compensation of personal representatives and employees of estate) and section 736.0206 (Proceedings for review of employment of agents and review of compensation of trustee and employees of trust). §§ 736.0206, 733.6175, Fla. Stat. Both statutes provide that “[a]ny person who is determined to have received excessive compensation [from a trust or estate] for services rendered may be ordered to make appropriate refunds.” §§ 733.6175(8), 736.0206(3), Fla. Stat. (emphasis added).

The issue on appeal is whether a proceeding filed in a probate case pursuant to those statutory sections requires service by formal notice under the Florida Probate Rules.

Section 736.0206(1), Florida Statutes, allows for the review of fees paid to a trustee or the trustee’s agents in'general. Subsection (2) of the statute allows for the review to be filed in with the settlor’s probate proceeding. § 736.0206(2), Fla. Stat. If the fee review proceeding is filed in a probate proceeding, the Florida Probate Rules regarding formal notice apply. § 736.0206(6), Fla. Stat. If the fee review proceeding is not filed in the settlor’s probate proceeding, the Florida Rules of Civil Procedure and service of process procedure under Chapter 48, Florida Statutes, apply. See §§ 736.0201(1), 736.02025, Fla. Stat. (2014).

Resolution of the issue of whether a proceeding for the review of fees paid to a personal representative or the personal representative’s agents requires service by formal notice depends on whether the proceeding is considered an “adversary proceeding” under the Florida Probate Rules. The issue of whether such a proceeding is considered an adversary proceeding, in turn, depends on whether a “refund” ordered pursuant to either statute is tantamount to a “surcharge,” as that term is used in the Florida Probate Rules and the case law. .Section 733.6175 makes no reference to “surcharge.” However, as discussed below, the case law in Florida clearly indicates that a fee dispute arising under section 733.6175 is, in essence, a surcharge proceeding.

Florida Probate Rule 5.025(a) specifically provides that a proceeding to “surcharge a personal representative” is an adversary proceeding. Fla. Prob. R. 5.025(a). The rule provides the same regarding guardians and guardianship proceedings. Thus, case law discussing the principles of “surcharge” in the guardianship context are useful in analyzing the principles of “surcharge” in the probate context. We also note that Chapter 744 governing guardianship proceedings has similar provisions for review of fees as found in section 733.6175. See § 744.108, Fla. Stat. (2014).

“A ‘surcharge’ is the amount that a court may charge a fiduciary that has breached its duty.” Reed v. Long, 111 So.3d 237, 238 (Fla. 4th DCA 2013) (citing Merkle v. Guardianship of Jacoby, 862 So.2d 906, 907 (Fla. 2d DCA 2003)). We also wrote in Reed that “[t]he purpose of such an award is to make the [] estate whole when the [fiduciary]’s actions cause loss or damage to the [estate].” Id. at 239 (citations omitted). Moreover, in the context of trust proceedings, the Fifth District has said that “[a] surcharge action seeks to impose personal liability on a fiduciary for breach of trust through either intentional or negligent conduct.” Miller v. Miller, 89 So.3d 962, 962 n. 1 (Fla. 5th DCA 2012). It is clear under the case law that a surcharge proceeding can be pursued when a fiduciary pays excessive fees to himself, herself, or agents of the fiduciary. In re Estate of Winston v. Winston, 610 So.2d 1323, 1325 (Fla. 4th DCA 1992) (“It follows without the necessity of citation of authority that the personal representative is subject to surcharge for any improper or excessive payments [of fees].”).

The case which most strongly equates a petition for review of fees pursuant to section 733.6175 with a surcharge is Beck v. Beck, 383 So.2d 268 (Fla. 3d DCA 1980). In Beck, the Third District said that “[the appellee]’s challenge to payment of that compensation invoked Section 733.6175, Florida Statutes (1977), which placed the burden of proof as to the propriety, reasonableness and necessity of such payments upon the personal representative.” Id. at 271 (emphasis added). The court went on to hold that “[t]he record amply reflects the propriety of the surcharge against [the appellant-personal representative] for payments he made with funds from [the appellee]’s share of the estate for ... overpayment of attorneys’ fees.” Id. at 272 (emphasis added); see also Merkle, 862 So.2d at 907 (holding that the order directing a refund of fees paid to the guardian “was tantamount to an order surcharging the guardian”).

“A personal representative is a fiduciary who shall observe the standards of care applicable to trustees.” § 733.602(1), Fla. Stat. (2014); see also § 733.609(1), Fla. Stat. (2014) (“A personal representative’s fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a personal representative is liable to interested persons for damage or loss resulting from the breach of this duty.”); State v. Lahurd, 632 So.2d 1101, 1104 (Fla. 4th DCA 1994) '(“The personal representative, like a trustee, is a fiduciary in handling the estate for the beneficiaries. As such, he or she is to observe the standard of care in dealing with the estate as a prudent trustee exercises in dealing with property of the trust.”) (citations omitted). A trustee is required to seek only reasonable fees for his or her services and the trustee’s agents. See §§ 736.0105(1), (2)(b); 736.0801; 736.0802(1), (7)(b), (8), Fla. Stat. (2014).

“Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding.” § 733.619(4), Fla. Stat. (2014) (emphasis added). In In re Estate of Pearce, 507 So.2d 729 (Fla. 4th DCA 1987), we said:

Inasmuch as section 733.609 likens the role of a personal representative to that of a trustee of an express trust, we find it helpful to see what is the usual law respecting surcharge, which is payment by a trustee ... out of the trustee’s own funds for breach of trust.”

Id. at 731 (emphasis added).

Accordingly, we hold that a proceeding seeking an order or judgment imposing a refund or surcharge against a fiduciary or a fiduciary’s agent, individually, and the immediate return of money to a trust, probate, or guardianship estate as a result of a breach of fiduciary duty (charging excessive fees) is tantamount to a judgment for damages, requiring personal service on the fiduciary as an individual, and not in any representative capacity.

We thus reject appellees’ contention that their petition for review of fees pursuant to sections 783.6175 or 736.0206 seeking an immediate refund of money to the probate or trust estate does not initiate an adversary proceeding subject to the notice requirements of the Florida Probate Rules. We hold that, absent a written waiver, formal notice served on the respondent individually, and not in a representative capacity, is required for a proceeding to surcharge a personal representative, as well as for a petition filed in a probate case pursuant to sections 733.6175 or 736.0206 seeking to require the fiduciary to return to the estate the overpayment of compensation paid to the fiduciary or agent. With regard to notice and procedure in such adversary proceedings, Florida Probate Rule 5.025(d)(1) explicitly states that in adversary proceedings, a “[pjetitioner must serve formal notice.” Fla. Prob. R. 5.025(d)(1) (emphasis added).

Kozinski was not served individually with formal notice of the petition for review of fees, and she did not waive in writing her right to receive such notice. Because personal jurisdiction over Kozin-ski in her individual capacity was not properly obtained, the trial court’s order denying Kozinski’s motion to dismiss is reversed without prejudice.

Reversed and remanded.

LEVINE and KLINGENSMITH, JJ., concur.

      . Florida Probate Rule 5.025 provides three mechanisms for treating a proceeding as an "adversary proceeding.” The only mechanism at issue in this appeal is the one provided for in Rule 5.025(a) (specific proceedings).

      . Likewise, section 736.0206 makes no reference to "surcharge.''

      . In In re Estate of Winston, we said that because a personal representative could be subject to surcharge for the payment of excessive fees, a personal representative has the right to file a petition for review of fees pursuant to section 733.6175, Florida Statutes, but we did not equate a petition for review of fees with a petition for surcharge for the obvious reason that it was the fiduciary who brought the review proceeding. 610 So.2d at 1325.

      . Even if the order or judgment is construed to be a sanction, the result would be the same. Taylor v. Mercedes, 760 So.2d 282 (Fla. 4th DCA 2000) (treating an order directing a guardian to reimburse the guardianship from the guardian's personal funds to be in the nature of a sanction and holding that the failure to give the guardian formal notice that such a sanction would be imposed required reversal).

      . Neither section 733.6175 nor section 736.0206 prescribes a time period as to when the refund is to be paid. Arguably, the court has the discretion to order the refund against future compensation payable to the fiduciary. We do not address whether formal notice is required in a situation in which a refund is used as an offset of the amount of the overpayment against future compensation.