Opinion
No. 94-04391.
March 20, 1996.
Appeal from the Circuit Court for Pasco County; Craig C. Villanti, Judge.
Ronnie G. Crider of Bauer, Crider Pellegrino, Clearwater, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ron Napolitano, Assistant Attorney General, Tampa, for Appellee.
Kathleen Ergos appeals an order which imposes a lien filed in the public record on November 18, 1994. The lien attaches, for purposes of criminal restitution, to her homestead property. She complains, and we agree, that the sentencing court could not impose such lien under article X, section 4 of the Florida Constitution. See Istvanditsch v. State, 636 So.2d 822 (Fla. 4th DCA 1994); McInnis v. State, 624 So.2d 856 (Fla. 4th DCA 1993); Downing v. State, 593 So.2d 607 (Fla. 5th DCA 1992); cf. Butterworth v. Caggiano, 605 So.2d 56 (Fla. 1992) (constitutional homestead guarantee intended to preserve homestead against involuntary divestiture by the courts without regard to technicalities of how divestiture accomplished). Accordingly we reverse and remand so that this order may be stricken. In all other respects we affirm the sentencing court.
DANAHY, A.C.J., and FULMER, J., concur.
ALTENBERND, J., concurs specially.
I doubt that the release order filed on November 18, 1994, created a lien against any property. I agree that neither that document nor any other document in this record can create a lien which attaches at this time against Ms. Ergos' homestead. On the other hand, the trial court entered a judgment for restitution on October 18, 1994, in the amount of $45,000, payable to the estate of John G. Aposotos. Assuming this judgment is properly recorded, it is comparable to any other judgment lien and may eventually attach to Ms. Ergos' home if it ceases to be homestead property. Miskin v. City of Fort Lauderdale, 661 So.2d 415 (Fla. 4th DCA 1995); Sackheim v. Marine Bank Trust Co., 341 So.2d 247 (Fla. 2d DCA 1977). Our opinion does not affect that judgment.
Ms. Ergos has no spouse and her children are all adults. Along with several other people, she engaged in a will fraud that caused a sizable loss to Mr. Aposotos' heirs. Ironically, because of the law of homestead, it is likely that her only significant asset will be transferred upon her death to her adult children, while the heirs of Mr. Aposotos will receive nothing from her estate. In re Estate of Scholtz, 543 So.2d 219 (Fla. 1989).